At long last the Obama administration has finalized a new rule on Stateside Processing of Provisional Waiver of Unlawful Presence. The new rule will take effect on March 4, 2013, which is the first day when eligible families can file provisional waiver applications.
The new rule will benefit individuals who are married to U.S. citizens or parents of adult U.S. citizens who have been unlawfully present in the United States for six months or more. Those folks are generally required to leave the country and to apply for a Family Unity waiver to forgive their time without permission as part of the legalization process. The problem with the old rule is that families were separated for months and even years while waiver applications were pending and subject to long processing times. The new rule does not remove the requirement for unlawfully present individuals to leave the United States to legalize, but will dramatically reduce the amount of time families are separated. Under the new rule, the spouse of a U.S. citizen may be able to return home to the United States after only a few weeks abroad.
The Stateside Provisional Waiver rule will not help everyone. Only the ground of inadmissibility for unlawful presence can be waived provisionally. If an individual is subject to an additional ground of inadmissibility, such as for fraud, he or she would have to file a waiver application after leaving the United States and attending an immigrant visa interview. When grounds of inadmissibility other than unlawful presence are involved, applicants must wait abroad until their waiver applications are decided. Also, only immediate relative of U.S. citizens can apply, as opposed to the spouses of lawful permanent residents, for example. Another limitation applies to people who are in removal proceedings or who have a final order of deportation. Those individuals would need to resolve their removal proceedings first, if possible.
The standard for a waiver of unlawful presence is not changed by the newly finalized rule. The waiver applicant must show his or her U.S. citizen spouse or adult child would suffer extreme hardship if the applicant has to stay outside the United States for ten whole years. Hardship can be expressed in terms of medical, psychological or emotional conditions. Hardship can also be based on the effect the ten-year bar would have on the U.S. citizen’s professional identity, finances, and other family ties, among other factors.
If you or someone you know is in need of a waiver of the ten-year bar based on unlawful presence, we encourage you to call our office for a consultation. Our attorneys can screen individuals for eligibility for the provisional waiver and determine the best solution.