Significant Change in Waiver Process Helps Undocumented Family Members of U.S. Citizens

January 11, 2012

New Waiver Filing Process Aimed at Keeping Families Together

U.S. Citizenship and Immigration Services announced this week a significant change to the current process of filing Waivers of Grounds of Inadmissibility (“I-601 Waivers”) on behalf of the spouses and children of U.S. Citizens. Most Americans believe it is easy to obtain permanent residency through a U.S. Citizen Spouse or Parent, but that is not true for all immigrants.

Many undocumented immigrants living in the U.S. are ineligible to obtain a green card without first leaving the country – even some who are married to U.S. Citizens or the children of U.S. Citizens. But that creates a big problem: as soon as these individuals leave the U.S. they automatically become subject to what are known as the “three or ten year bars,” meaning that they cannot return to the U.S. for three or ten years, depending on how long they have lived in the U.S. illegally.

Certain family members of these immigrants may be able to file for a Waiver on their behalf. However, the Waiver will only be approved if a U.S. Citizen or permanent resident spouse or parent can prove that they will suffer an “extreme hardship” as the result of being separated from their relative.

Right now, you may only request a Waiver AFTER you have left the United States and the U.S. Embassy or Consulate in your home country has determined that you are not allowed to return. The Waiver Application then needs to be filed separately overseas with one of many USCIS Field Offices and can take several months to be processed. Even if the Waiver is approved, families can be separated from their husbands, wives, and children for a very long time. If the Waiver is denied, the relative cannot return until he or she has remained abroad for the full three or ten years.

Because of the long processing times and the incredible uncertainty involved in the process, many undocumented immigrants who otherwise would be eligible for permanent residency never attempt to obtain it. The risk of leaving the country is simply too high.

The current administration’s solution to this decades long problem is to change the process to allow U.S. Citizen spouses or parents of some undocumented immigrants to file for these Waivers BEFORE their relative leaves the U.S. The Waiver will then be adjudicated in a centralized and standardized process at a USCIS Service Center in the U.S. before the relative leaves the country to obtain their “immigrant visa” at the Embassy in their home country. The relative will still be unable to obtain a green card without leaving the U.S.

It is important to note, however, that the new rule will help only spouses and children of U.S. citizens, not spouses and children of legal permanent residents, and does not alter or revise the eligibility standards for green cards or waivers. The new “in-country processing” of the waivers is also only available for undocumented immigrants who are only subject to the three or ten year bar for unlawful presence. It is NOT available for immigrants who are inadmissible for other reasons.

The announcement sited a desire to keep families together as the driving force behind this decision. A simple change in procedure could save many families from months, if not years, of separation.

The procedural change will not go into effect immediately. The proposal could take several months and many internal changes at USCIS to become a reality.

We hope to keep all of our readers updated on new developments in the near future.

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