On Friday, January 6, 2012, the United States Citizen and Immigration Services (USCIS) announced a change in policy for spouses or children who were petitioned by their U.S. Citizens spouse or parent. The proposed Provisional Waiver rule would allows the spouse or child of a U.S. Citizen to obtain a provisional waiver in the United States and if approved, go to their home country to pick up their visas, thus reducing the separation time between families and the uncertainty of whether they will be able to return if their visa is denied.
In the past many were forced to remain undocumented even though they had a pathway to legal residency due to a Catch 22 effect in our immigration law. This problem is a result of the 3 and 10 year bars imposed under INA § 212(a)(9)(B). Those who have remained “unlawfully present” in the US for 1 year or more face a 10 year bar to re-enter if they depart the US. Those who have remained “unlawfully present” for more than 180 days face a 3 year bar to re-enter if they depart the US. Thus, even if a US Citizen sponsored his undocumented spouse or child, they would need to leave the country to apply for the visa from their home country and await an interview there. Once they left the country, the bar for reentry kicked in and if their visa was denied, they’d have to wait 3-10 years to re-enter the country. This is the reason why many who are eligible refuse to petition for their immediate relatives who are “unlawfully present” in the US. Please note that “unlawfully present” is a legal term of art that is defined as follows under INA § 212(a)(9)(B) :
This is great news for our community as many spouses and children of US Citizens. Under the proposed rule, the waiver can be applied for while in the US. With the waiver in hand, the individual departing the US can more readily hope to reenter the US without facing the 10 year bar. As noted by Immigration Daily, “People subject to the 3 or 10 year bars still need to apply for the waiver and meet the rigorous “extreme hardship” standard, except that they can apply for it in the US prior to their departure. If they obtain the waiver, they can at least be assured of not triggering the 3 or 10 year bars upon their departure.”
Please note that the provisional waiver applies only for unlawful presence, not for fraud, misrepresentation or criminal issues.
It seems that this is the first in many administrative changes that the Obama administration will conduct for USCIS and family based petitions. Perhaps he was holding these surprises for our community for re-election season, but whatever his reasoning might be, we hope that he will continue to effect change in the process and for our community by being changing the things that he can control. This was a clever move for Mr. Obama as he doesn’t need the support of Congress to make these administrative edits that are fully within his scope as President.
The law will most likely take effect before the end of 2012, so we ask for the community to stay informed through their trusted new sites and attorneys and to not fall prey to notarios or people who are assuring them that this is a form of amnesty because it is not. If you have any questions you can email us here at Justicia Hoy or anyone of the trusted resource providers located under our “Resources” tab.
