The USCIS has announced that its Stateside Provisional Waiver process to allow immigrant visa applicants to overcome the 3 and ten year “unlawful presence” bars should be in full force by the end of 2012. Earlier this year, the US Department of Homeland Security (“DHS”) announced that it has promulgated new regulations to allow for the processing of waivers of the “three and ten year bar” for immigrant visa applicants who have previously accrued “unlawful presence” in the US. The regulations are a marked change from the current procedure, which requires such applicants to undergo a lengthy and harrowing process to seek a waiver from a USCIS field office outside of the US, after their immigrant visa is refused under the three and ten year bar. The new procedure will allow for individuals to seek a “provisional waiver” of the unlawful presence bar while still in the US, prior to their departure to apply for the immigrant visa abroad.
In 1996, Congress overhauled the Immigration & Nationality Act (“INA”) by adding many new grounds of inadmissibility to and removability from the United States. Among the more controversial grounds of inadmissibility was the 3 year bar from admission for any person who had previously been “unlawfully present” in the US for a period in excess of 180 days, and a 10-year bar if unlawfully present for 1 year or more. Departure after accruing the requisite period of unlawful presence triggers the bar from readmission, such that persons who are eligible to adjust status in the US, even after having accrued lengthy periods of unlawful presence, are not subject to the bar.
Those persons who have an immigrant visa available to them, but who are ineligible to adjust status in the US, however, must make a difficult decision to leave the US and their loved ones behind to apply for a waiver in conjunction with their immigrant visa application at the US Embassy or Consulate in their home countries. This process has visited undue hardships on thousands of individuals over the past 15 years, as lengthy separation of husbands and wives from each other and their children is a common side effect of the procedure.
Under the new regulations, an applicant for an immigrant visa requiring a waiver of the unlawful presence bar may seek and obtain a “provisional waiver” while still in the U.S. If the provisional waiver is approved while still in the US, then the applicant must then depart the US to complete the immigrant visa application process. The new procedure is intended to ameliorate the hardships that delays inherent in the Consular process cause to the families of applicants forced to depart the US in order to apply for lawful permanent resident status.
While the procedure will change under the new regulations, the legal standard for approval of the waiver remains basically the same. An applicant subject to the unlawful presence bar must establish that his US citizen or lawful permanent resident spouse or parent would suffer “extreme hardship” is he is not readmitted to the US for a period of three or ten years. The new process will alleviate the difficulties associated with adjudication of the waiver application under the current process, which can take several months and does not even commence until after the applicant is found inadmissible due to the unlawful presence bar at his immigrant visa interview.
Unfortunately, the new waiver procedure will only apply to applicants who can show that their US Citizen spouse or parent would suffer extreme hardship if they are no readmitted and will not apply to family members of lawful permanent resident petitioners and will not include immediate relatives if their qualifying relative for the hardship waiver is not a U.S. citizen spouse or parent. Applicants in these circumstances will still need to apply for the waiver at the Embassy in their home countries and face the same difficulties all applicants currently face in this process.