New Immigration Waiver Law Announced

Immigrant families have long made vital contributions towards the U.S. economic and social prosperity as productive workers, entrepreneurs, and community members. Thus, it is not surprising that the concept of family unity is one of the fundamental tenets of the U.S. immigration system.

The system awards the majority of its visas to the families of U.S. citizens and permanent residents. However, good intentions do not always provide equally good results. Backlogs caused by quotas in family immigration categories are astounding, as the number of immigrant visa applications far exceeds the number of visas available per category. For instance, the wait time for unmarried adult children of the U.S. citizens is approximately six years and eight years for those who are married. The picture is grimmer for the siblings of U.S. citizens, who have to wait between ten and twelve years for their visas.

The situation for immediate relatives (spouses and children) of U.S. citizens who entered the country without inspection has been difficult as well. The current system imposes many hardships on these applicants, as they have to be separated from their families for prolonged periods of time due to the requirement that their waiver of inadmissibility request be processed at a U.S. embassy or consulate abroad. Under the current system, the waiting time for the approval of these waivers takes anywhere from a couple of months to several years, and the intending immigrant has to remain abroad the entire time during the waiver determination process. Only after the waiver gets approved, the applicant can come back to join his or her family in the United States.

The new provisional waiver rule should cure the separation problem between the immediate family members and their U.S. citizen spouses or parents. The new law will make it possible for the visa applicants to obtain waivers of unlawful presence while in the United States before they leave to attend the immigration interview abroad. The hope is that the families would stay united throughout the process and would only separate for a few days during the time the applicant goes overseas for his or her consular interview.

The new law goes into effect on March 4, 2013. In the next few weeks, the USCIS will provide detailed instructions as to the application process, so check back, as I will be posting those on our blog and providing detailed explanations of the requirements.

Thus far it is known, that the application form will be I-601A. The USCIS fee for this form will be $670 ($585 to file the application and $85 for biometrics (fingerprinting)). Applicants eligible for the waiver are the ones who

1. are at least 17 years of age;
2. immediate relatives of a U.S. citizen (spouse or children);
3. present in the United states at the time of filing the waiver application and biometrics collection;
4. subject to inadmissibility ONLY because of unlawful presence;
5. beneficiaries of an approved immediate relative petition (I-130 or I-360);
6. have paid the immigrant visa processing fee;
7. will depart from the United States to obtain the immediate relative immigrant visa; and
8. are able to demonstrate that denial of the waiver would result in extreme hardship to their U.S. citizen spouse or parent.

If you are currently in removal proceedings and the proceedings have not been administratively closed, then you may not apply for the provisional waiver. Aliens whose removal proceedings have been terminated or dismissed are eligible to apply, however, as are aliens whose NTAs were cancelled by ICE.

If your case is already pending with the National Visa Center and your interview has not been scheduled as of January 3, 2013, then ensure you notify the NVC of your choice to seek the provisional waiver. If you fail to notify the NVC, your case may be scheduled for the interview at a U.S. consulate abroad. E-mail NVCi601a@state.gov to inform the NVC of your decision. Include your NVC case number in the subject line. In the body of the e-mail, include the your name, date of birth, the petitioner’s name and date of birth, as well as the attorney of record’s name and address (if applicable). Additionally, state that you will be applying for the provisional waiver with the USCIS.

If you have any questions about the provisional waiver or any issues associated with it, please do not hesitate to post your question in the comments/questions section after this post. You may also contact me directly at olya@gmlaw.net. At Gardner & Mendoza, we truly care about you and are always happy to assist you with finding a plausible solution to your immigration issues!