The U.S. Citizenship and Immigration Service (“USCIS”) recently changed the rules regarding the filing of provisional unlawful presence waivers. USCIS now allows some immediate relatives of U.S. citizens (spouses, children under 21 years of age and parents of U.S. citizen children over 21 years) who entered the country without inspection, or who might otherwise be ineligible to adjust their status in the U.S. due to unlawful presence, to file for a waiver of inadmissiblity before leaving the U.S. to have their immigrant visa decided overseas at an embassy.
Under the prior rules, if an alien had accrued a certain number of days of unlawful presence, but they still had an approved I-130 family relative petition, they still had to leave the U.S. to apply for a green card overseas at a U.S. consulate or embassy. The departure triggered a three year ban if the unlawful status was more than 180 days and less than 1 year. If the period of unlawful status was for more than a year, the ban on re-entry to the U.S. was ten years.
As an example, let’s say that Pierre from Paris, France, had been in the U.S. for over one year in unlawful status because he entered the country without inspection. But Pierre had later married a U.S. citizen. Pierre’s wife could file and obtain a spouse visa; however, under the old rule, Pierre would have to return to Paris, file for the waiver and to adjust status at the U.S. embassy in Paris. He would also have to file a waiver and wait for the waiver to be adjudicated at the embassy and while he stayed in Paris. This would lead to long periods of separation while the waiver was ruled upon.
The new rule allows immediate relatives of U.S. citizens to seek a waiver of unlawful presence through USCIS while in the U.S. and to obtain approval of that waiver before leaving the U.S. and traveling abroad. The goal with this change is to lessen the length of separation between family members. The law does have limitations in that it only applies to eligible spouses and children of U.S. citizens, as well as parents of U.S. citizens under certain conditions. Foreign nationals with other grounds of inadmissiblity still must follow the regular waiver procedures. Waiver applicants are required to demonstrate that refusing to grant lawful status would cause “extreme hardship” to the U.S. citizen spouse or parent. For parents of U.S. citizens applying for the waiver, the parent needs to have another qualifying relative that can support the extreme hardship requirement.