Proposed Stateside Waiver Rule

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By: Dustin W. Dyer, Esq.

Spouses and minor children of U.S. citizens who enter the United States without inspection and who wish to apply for a green card are required to depart the United States and appear for an interview at the U.S. embassy in their country of origin. For those who have been in the United States for more than six months unlawfully, this required departure from the United States will trigger what is known as the “unlawful presence” bar, thereby barring the green card applicant from returning to the United States for up to ten years from the date of departure. Those who have a spouse or parent who is a U.S. citizen or permanent resident (green card holder) may qualify to apply for a waiver of the unlawful presence bar.

Under the current process, this waiver cannot be applied for in advance of departure, but must be applied for after departure at the U.S. embassy where processing times can exceed more than one year. While the waiver is under review, the green card applicant is not able to return to the United States, but must wait for a decision to be rendered on the waiver application. Because an approval is never guaranteed, many applicants not only face a prolonged separation from their U.S. family members, but also face uncertainty as to the result. The prospect of a prolonged separation and risk of denial result in many applicants choosing to remain in the United States until another option comes along.

On April 2, 2012, United States Citizenship & Immigration Services (USCIS) published a proposed rule which would allow spouses and minor children of U.S. citizens who would suffer the unlawful presence bar upon departure from the United States to have their waiver applications adjudicated “stateside.” What this means practically is that the waiver application may be filed and a decision rendered while the green card applicant is still in the United States, instead of requiring the applicant to depart and apply for the waiver at the U.S. embassy. This proposal will alleviate the prolonged separation and uncertainty present in the current process, and allow waiver applicants to depart the United States with peace of mind that the immigrant visa will indeed be issued and a speedy return to the U.S. possible.

Only spouses and minor children of U.S. citizens who are barred from receiving their green cards only as a result of their unlawful presence will be able to benefit from the proposed stateside waiver rule. Also, applicants who are barred from receiving green cards for other reasons (such as committing crimes, for being habitual immigration violators or for being ordered deported) are not eligible under the proposed rule. On October 9, 2012, USCIS informed that the final rule will be published by the end of 2012. And the requirements of the final rule may differ from the proposed rule. As always, we encourage you to consult with an experienced immigration attorney before filing any application for an immigration benefit.

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