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Archive for the ‘Waivers’ Category

Provisional Waiver of Unlawful Presence Goes Into Effect March 4, 2013

Posted on: Saturday, January 12th, 2013  In: Waivers  |  Comments Off


The United States Citizenship and Immigration Service announced this week that it will begin accepting applications for provisional waivers on March 4, 2013. This new procedure will allow certain applicants who are immediate relatives of US citizens, such as spouses and certain children, to apply for a waiver of their unlawful presence prior to departing the United States to attend their immigrant visa interview at a consulate in their home country. The waiver will be decided while the applicant is in the US and only when the waiver is approved will the applicant need to travel to his or her home country to attend the visa interview. The current procedure requires the applicant to wait outside the US while the waiver is adjudicated, which can take several months or more, so the new process will greatly reduce the stress and heartache of separation. It is important to remember that only unlawful presence in the US can be waived (forgiven) with the provisional waiver and applicants who have other bars to reentry, such as criminal convictions or previous immigration violations, will not be able to use the new waiver procedure to forgive those, and will instead need to apply via the current route of waiting outside the US for a decision. In order to apply for the provisional waiver, applicants must have an immigrant petition approved on their behalf, and they must have consular process with the Department of State initiated but no interview yet scheduled. Also, those applicants who are in removal/deportation proceedings will need to petition the court to get the proceedings administratively closed before they can seek the waiver. In order to win on the waiver application, the applicant must show that his or her US citizen spouse or parent in certain situations, would suffer “extreme hardship” if the family member were deported from the United States. Factors considered for extreme hardship include severe level of separation, economic hardship, medical conditions which are exacerbated by separation and which may have no treatment in other country, family and community ties in the US. It is important to note that only hardship to the US citizen is considered and not hardship to the foreign applicant. The aid of a qualified social worker or psychologist to document hardship is often very helpful and provides additional credibility. The provisional waiver, in and of itself, does not grant any immigration status and must be carefully considered prior to applying. As always, seeking advice from a qualified immigration attorney is crucial.


New Procedures for Unlawful Presence Waiver

Posted on: Saturday, February 25th, 2012  In: Waivers  |  Comments Off

Last month the USCIS announced a change in procedure regarding processing of unlawful presence waivers. Under the current procedure, people who entered the United States without inspection, meaning they worked across the border without presenting proper entry documentation such as visa, were ineligible to apply for permanent residence or a waiver until they left the United States. Of course, once they left and their waiver application was denied and they appealed, they were already separated from their family for months or even years. This rule applied to spouses of US citizens as well. Needless to say such a rule was very harsh on the marriage, especially if there were children involved and the foreign national was the only breadwinner in the family. Often, the undocumented entry happened years ago, sometimes even when the foreign national was a child, but the consequences were the same. Last month , USCIS decided to accept stateside processing of the waiver, which means the procedure of applying for the waiver changed but the requirements to meet eligibility are the same. The new change allows the family to file an application for a waiver of the unlawful presence from within the United States. If the waiver is approved, then the foreign national still needs to travel to his or her home country to obtain an immigrant visa at a US consulate. However, the time spent waiting for approval of the waiver, which often takes several months or even years, is spent together by the family without being separated and without additional unnecessary separation. It is a much more humane approach, giving credence to the statements that the USCIS values family unity. Please keep in mind that the standard to obtain a waiver remains the same. A US citizen spouse must still demonstrate that he or she will suffer “extreme hardship” if the foreign national is deported from the US. This is a very high standard to meet and by no means can it be considered a given in every situation just because a marriage exists. Separation alone and financial hardship alone is insufficient. There must be a showing of more in order to meet the “extreme” test. Often, even families with children and long term marriages are not able to prove extreme hardship in the case of deportation of the foreign national. Nevertheless, for those who have strong meritorious cases, the new procedure lessens their financial burden and eases their suffering by allowing the family to be together while the waiver is adjudicated. Last Wednesday, the USCIS announced that the new rule is not yet in place and that in several months it will publish it allowing comments on it before it ones final.