On January 6, 2012, United States Citizenship and Immigration Services (USCIS) proposed a regulatory change that will decrease the amount of time that U.S. citizens are separated from their families while their immigrant spouses and children go through the process of becoming legal residents of the United States. The proposed change refers to the procedures by which illegal immigrants with American family members apply for legal residency (green card), allowing a crucial early step to take place in the United States rather than in the immigrant’s home country.

American citizens can apply for green cards for immigrant spouses and children, even those who entered the country illegally. But currently, those who entered the United States without inspection and accrued more than 180 days (approximately 6 months) of unlawful presence in the U.S. must leave the country and apply for legal permanent resident status through consular processing in their home country. However, once such immigrants leave the United States, they are automatically barred from returning for as long as 3 or 10 years. (Even those who entered the United States legally, but overstayed their status by more than 180 days, will be subject to the 3 to 10-year bar if they leave the country before adjusting status based on their marriage to a U.S. citizen.) This has become known as a “Catch-22” in immigration law, widely criticized by immigration rights groups.

Currently, immigrants can receive a waiver to allow them to return to their families before that 3-10 year period by showing that their U.S. citizen family member would face extreme hardship as a result of the separation. But under current procedures, in order to obtain the waiver, these individuals must apply from outside the United States after they have been found inadmissible by a Department of State consular officer. This process can be lengthy and discourages individuals who are currently eligible for this waiver from applying. As a result, many immigrants who are eligible for family-based green cards have chosen to remain undocumented rather than risk being unable to return to their families in the United States.

To address this problem, the USCIS proposal would allow eligible immediate relatives of U.S. citizens to apply for and receive “provisional waivers” of unlawful presence before they leave the United States for consular processing of their immigrant visa applications, significantly reducing the time U.S. citizens are separated from their spouses or children.

According to USCIS, provisional waivers will be available for spouses and children of U.S. citizens, who are seeking lawful permanent residence through an immigrant visa and who are found inadmissible based on unlawful presence in the United States for more than 180 days, and who meet the existing extreme hardship standard. Children under the age of 18 do not accrue unlawful presence and, as a result, are not required to obtain a waiver. USCIS warns that no one should apply for a provisional waiver until a final rule was issued, which may take several months. The new rule would make no change in the situation of illegal immigrants who do not have immediate American family members.

The proposal will not only further the Obama Administration’s commitment to family unity, but also improve government efficiency by increasing the predictability and consistency of the application process, USCIS Director Alejandro Mayorkas said in a statement.

Attorneys at I.S. Law Firm have helped many immigrants to remain in the United States and legalize their status. To explore your immigration options, please contact us at +1-703-527-1779 or by e-mail: [email protected].