WaiversNew Rules to Speed PROVISIONAL Waivers -
Saving Years of Waiting to Unite Families
US Citizenship & Immigration Services new Provisional Waiver process, allows applicants to await a decision in the US instead of overseas, provided that they have either a Parent or Spouse who is a US Citizen OR Permanent Resident. (A reminder - applicants with a US Citizen child are not eligible for a provisional waiver).
Who Does this Affect?
This new process is for persons who are in the United States and cannot obtain permanent residency (Green-card) because they entered the US illegally or overstayed their visa.
Once a visa petition is approved, the applicant would be able to file a provisional waiver request. In this waiver request, the applicant would have to show that a qualifying relative – a US Citizen OR Permanent Resident Spouse or parent -would suffer extreme hardship if the applicant was barred from re-entering the US for a period of 10 years. The qualifying relative for the waiver does not necessarily have to be the relative who filed the immigrant visa petition.
For example, a person eligible for the new procedure came to America without a visa (illegally through Canada, Mexico,) perhaps as a child, remained in the US, married a US Citizen, has his own US born children, but cannot obtain a green card through his spouse or children because he entered the US without a valid visa. Persons in this situation would normally have to return to their home country, file a waiver request with the US Consul abroad, and wait 1-2 years overseas for a reply. This often leads to marital problems and problems with children when a parent must remain in a foreign country for several years, breaking up families and causing hardship.
Under the new procedures, an applicant would file a petition and then a provisional waiver. Once approved, the applicant would have to travel to the US Embassy in their home country to complete their permanent residency application, but would have to remain overseas for only a few days to obtain a visa, not a few years under the old procedures.
The Current Visa Waiver Process – Uncertainty & Delays
If an individual entered the US illegally, and remains in the US illegally for a period of 180 days or greater, and they leave the country, they cannot re-enter for a period of 3- or 10-years. Individuals previously could apply for a waiver of this bar only after an interview at an American Consulate overseas. At that time, most individuals would file a waiver and have to wait from one to two years for approval.
Under existing procedures, individuals subject to this re-entry bar face years of separation from their family while awaiting approval of their waiver. Applicants also risked not being able to return at all if their wavier application was denied. But the lengthy delays and risks in the current waiver procedure discourage many family members from applying.
The New Waiver Process
The new process will allow applicants to apply for a waiver while they remain in the U.S.
Under the new rules, an applicant applies for a wavier BEFORE leaving the US. They would leave for a short period of time (usually only several days) obtain an Immigrant Visa, and be able to return to be with their family members. If the waiver is not approved, the applicant can decide not to leave the country, but could reapply for a waiver.
It is important to remember that this new visa process only applies to waiving the fact that someone stayed unlawfully in the US. If an individual is subject to another restriction from entering the US (because they lied on a previous application, were ordered removed/deported or committed a crime) then they will still have to apply for a waiver at the American Embassy overseas. The waiting time for these waivers filed overseas remains the same (generally several years). Also, the chances of obtaining an approval are also subject to a decision by the Immigration Service overseas.
The Immigration Service has cautioned that if a waiver is not approved under this new procedure, the individual is subject to the regular application of the Immigration Laws.
What is Needed?
The recent announcement does not change current waiver procedures, and will not affect those who have pending waiver applications. Individuals with a waiver application in process should consult as to the best way to proceed.
Individuals who will be eligible for a wavier under the new procedures should start to collect information and evidence which would show that their qualifying US relative (spouse or parent) would suffer extreme hardship if the applicant was prevented from entering the US for a period of 3 or 10 years. Once the new procedures are in place (at the end of this year) we should be able to file for the provisional waiver in the US.
The proposed rule change would mean that many Americans will no longer be separated for months or years from family members. Hopefully, this would encourage many individuals to file for permanent residency for their spouses and children who entered the US illegally.
As with any Immigration related matter, it is best to consult with an attorney to obtain the full impact of this or any immigration related legislation before taking any action. We at Kurczaba Law Offices are here to assist you with the optimal manner in which to obtain permanent residency, obtain a waiver, or complete any immigration matter.
Please contact our office so that we can make a determination of your eligibility to file and so that we can help you track your progress.
Kurczaba Law Offices PC
6219 N. Milwaukee
5444 S. Archer
Fax (773) 774-0022
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Please contact our office so that we can make a determination of your eligibility to file and so that we can help you track your progress. This article is for general informational purposes only.