USCIS Proposing Changes to Waiver Procedures
By: A. J. Balbo, Esq.
On January 6, 2012, the U.S. Citizenship and Immigration Services (USCIS) published a proposed plan to dramatically change the way some family members seek to adjust status and obtain green cards.
Currently, spouses and other close family members who have accrued unlawful presence by overstaying a visa can seek to adjust status without leaving the United States. However, for individuals who have entered the United States without inspection (illegally), the only way to adjust status, with limited exceptions, is to leave the United States and file for a waiver using Form I-601.
In order for a waiver to be approved, the immigrant must demonstrate that a U.S. citizen would face extreme hardship if the immigrant were not allowed to return. It may take up to a year of separation before a waiver is granted.
In the event a waiver is denied, the immigrant is subject to being barred from the United States for either three or ten years. Therefore, the current system needlessly forces families apart and subjects them to a severe penalty if extreme hardship is not established.
Under the new proposal, the spouses and children of U.S. citizens who are eligible for a visa may apply for a provisional waiver before leaving the United States. In other words, the waiver can be filed and adjudicated without the immigrant having to leave for an extended period of time.
This proposal only applies to immigrants who are inadmissible based solely on unlawful presence. The standard of proving extreme hardship remains the same, however. It is also true that the immigrant would still need to leave the United States and process their application at the consulate.
Nevertheless, this proposal will streamline the process of applying for a waiver by substantially reducing the amount of time a family will be separated before a green card is granted.
This policy change is only a proposal at this time. No one should file an application with USCIS based on the proposed changes. A final rule may be in place in the next several months.
Such a policy, if enacted, represents a reasonable and compassionate attempt to address the immigration dilemma that many families face.
A. J. Balbo is a partner at Balbo & Gregg, Attorneys at Law, P.C., located in Richmond Hill, Georgia.