New Proposed USCIS Regulation Would Offer Relief to Unlawful Immigrants

A new regulation proposed by the USCIS would allow unlawful immigrants currently residing in the U.S. to apply for a provisional unlawful presence waiver prior to departing the United States. This new regulation is an attempt to provide some relief to persons who have accrued more than 180 days of unlawful presence in the U.S.

Find Out if this New Regulation Will Help you

This new regulation may provide relief to persons who:

  • Are the spouse, parent or child of aU.S. citizens
  • Entered the U.S. illegally and remained for more than 180 days<; and
  • Have a U.S. citizen spouse or parent who will suffer extreme hardship if a waiver is not granted

If you would like to know if you may qualify for a provisional waiver please complete our free case evaluation form.

Unlawful Presence Waivers Under Current Law

Under current U.S. law, any person who accrues 180 days of unlawful presence in the U.S. is barred from entering the country again lawfully for a period of 3 years. The bar is 10 years for a person who accrues 365 days or more of unlawful presence. There are waivers available for these bars for certain prospective immigrants; however, in order to apply for the waiver the intending immigrant must leave the U.S. and apply for the waiver abroad. This procedure for applying for the waiver places unlawful immigrants in a difficult position and, for many, makes the option of applying for a waiver not a viable option.

This is best illustrated by example. Let's assume that you are a U.S. citizen and that your spouse entered the U.S. unlawfully and has been unlawfully in the U.S. for over a year. Under U.S. immigration law, the spouse of a U.S. citizen is considered an "immediate relative". There are no annual visa limits for immediate relatives so you could file a petition for an immigrant visa for your spouse. However, since your spouse entered the country illegal he or she does not qualify for adjustment of status. This means that in order to obtain his immigrant visa (and lawful permanent residency in the U.S.) your spouse will have to depart the U.S. and apply for his visa abroad. Here's where the problem comes in. Because your spouse has accrued over a year of unlawful presence in the U.S. even if his visa is approved he will be barred from returning to the U.S. for a period of 10 years unless he obtains a waiver. Currently, it can take more than two years for an immigrant visa petition and waiver to be approved. For many families, being separated for two years or more isn't an option. In many cases, there are young children involved and the unlawful immigrant spouse may be the sole provider for the family. As a result, at the end of the day you and your spouse have two choices:

1. Your unlawful immigrant spouse can depart the U.S. and apply for an immigrant visa and a waiver of the 10 year bar. However, this will likely take more than 2 years and there is no guarantee that it will be approved; or

2. Your unlawful immigrant spouse can just remain in the U.S. unlawfully and hope the law changes before he is deported.

For many couples, this isn't much of a choice. As a result, many unlawful immigrants who are married to U.S. citizens choose to simply take their chances and remain in the U.S. unlawfully. The new proposed regulation should make apply for a waiver a more attractive option for families who face this dilemma.

Unlawful Presence Waivers Under the New Proposed Regulation

The new proposed USCIS regulation is not a new law, nor is it an amnesty. Rather, it is simply a new procedural regulation that would change how unlawful presence waivers are processed.

Under the new regulation, unlawful immigrants would be allowed to apply for a provisional waiver of the 3/10 year bars prior to departing the U.S. The intended goal of this new regulation is to minimize the amount of time families are separated while waiting for the adjudication of their waiver applications. The new regulation would allow immediate relatives of a U.S. citizen to apply for a provisional waiver in the U.S. upon the filing and approval of an I-130 Petition for Alien Relative. The waiver applicant will be required to establish that denial of the waiver will result in extreme hardship to a U.S. citizen spouse or parent. The waiver, if approved, would be granted prior to the intending immigrant's departure from the U.S. to attend his consular interview for his immigrant visa. However, the provisional waiver would not become effective unless and until the applicant departs the U.S. Assuming the applicant otherwise qualifies, the visa would be granted and the applicant could immediately return to the U.S. as a lawful permanent resident.

This new procedure could mean that families in this situation may only be separated for a few months instead of a few years. Many immigration experts also believe that the new regulation will encourage many unlawful immigrants to come out of hiding and take action to legalize their status.

Who would qualify to apply for a provisional waiver?

The new regulation allowing unlawful immigrants to apply for a provisional waiver would initially be limited to a special group of potential applicants. Under the proposed regulation only immediate relatives of U.S. citizens who can show extreme hardship to a U.S. citizen parent or spouse would qualify. An immediate relative is defined by U.S. immigration law as the parent, spouse or child of a U.S. citizen.

When will the new regulation take effect?

It is not yet known when the new regulation will take effect. The USCIS published notice of its intent to issue the new regulation on January 6th. After this, the DHS will issue a Notice of Proposed Ruling making which will include the new regulation and invite public comment. Once this has taken place the final rule will be adopted and implemented. Some experts on this procedure estimate that the new regulation could take effect before the end of 2012.

What you should do now

If you or one of your family members is unlawfully present in the U.S. you should contact an experience immigration attorney immediately to determine if you may qualify for the provisional waiver. It is very important that you consult with an attorney before you take any action. Under the proposed regulation, once the regulation takes effect, those applicants with pending unlawful presence waivers will not qualify for the new provisional waiver procedure. *No person who is unlawfully present in this country should file a waiver application or depart the U.S. before consulting an immigration attorney.


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