New Procedures for Unlawful Presence Waiver

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.

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