Starting March 4, 2013, certain relatives of American citizens who are in the country illegally and need a waiver of unlawful presence before being eligible for a green card can get a decision on their case before leaving the United States.
For those who can take advantage of the new rule, this means peace of mind, knowing that their loved one is likely to successfully complete the immigration process and not be stranded in a foreign country for an unknown length of time. For some, however, the new rule will do nothing to resolve their immigration issues.
1. What is the new rule and how can it help my family?
Under current law, many immigrants who enter the country illegally or overstay their visas cannot apply for permanent residence (a “green card”) in the U.S., and instead must finish the immigration process abroad. Unfortunately, just leaving the country—even to pick up a visa sponsored by a family member—automatically makes the intending immigrant subject to a penalty for their “unlawful presence,” potentially separating them from their family for up to ten years.
For some, but not all, the penalty can be waived. Before this new rule, immigrants could be stranded outside the country for weeks, months or even years while waiting for a decision on whether they could return to their life in the United States. And all that time, the immigrant was stuck abroad, usually with no legal way to return. Many families endured the emotional strain, financial hardship and dangerous conditions. Others simply were unwilling to take the risk.
The new rule means that many immigrants will leave the United States, knowing in advance that their case will probably be approved, and they could be back with their families—as a legal resident—in a matter of days.
2. Who can apply under the new rule?
Only applicants who are an immediate relative of a US citizen (spouses, parents and certain children) can apply at this time, though the rule may later be expanded to other relatives.
The applicant must be physically present in the United States, and not already have a scheduled interview at a U.S. consulate abroad. Also, the provisional waiver is only available if the sole issue holding up a case is unlawful presence. Applicants who have criminal issues or other immigration violations cannot use the provisional procedure.
Individuals who are in immigration court or who have an order of removal or voluntary departure may not qualify unless they get special permission from the government and a court order resolving their case.
To be successful, applicants must show that denying the case would be an extreme hardship to their qualifying relative(s); the impact on the immigrant doesn’t count. Hardship factors can include family separation, economic hardship, medical issues, country conditions abroad, and any other difficulty or harm faced by the qualifying relative(s), if the waiver isn’t granted.
3. What does it mean that the waiver is “provisional?”
Even if a waiver is granted, the approval is “provisional.” As a practical matter, this means that the government has reviewed the case and believes that the waiver should be granted, but there is no guarantee that a case will be successful if facts change or new information comes to light. For example, if an applicant had previous immigration violations or criminal history, the provisional waiver will be revoked.
If any new issues arise, and the applicant is still eligible for a waiver, he or she will be able to re-apply using the existing process, but will have to wait abroad for a decision on their case.
4. When can I apply?
The new rule goes into effect on March 4, 2013, and no filings will be accepted before that date. You can only apply for a provisional waiver after an immigrant petition has been approved. If you haven’t filed yet or you’re still waiting for a decision on a pending petition, you can’t apply for the provisional waiver—yet.
5. What else do I need to know about provisional waivers?
A provisional waiver is not a legal status, and even an approved waiver doesn’t provide work authorization, a social security number or a driver’s license. Having a provisional waiver will not protect you from deportation or any other consequences of being in the country illegally.
If an application for a provisional waiver is denied, there is no appeal. If you have more or better evidence to prove your case, you can re-file, with a new filing fee. Remember, not everyone can be sponsored or qualify for a waiver, and just as importantly, not everyone needs a waiver.
6. Do I need to work with an attorney?
The immigration process can take months, even years, and government filing fees and other expenses are significant—it’s best to know your options before investing time and money. A thorough legal consultation should look at all aspects of your immigration history to find the best solution for your family, not just evaluate eligibility for a provisional waiver.
Always work with a licensed immigration attorney. Never trust legal advice from an unregulated consultant or notario. Consider consulting with an experienced immigration lawyer before starting the process to make sure that you qualify, and that stateside waiver processing is the best solution for your immigration case.
Always turn to reputable sources for immigration advice and information about new developments. Finding an AILA lawyer is a good place to start. Members listed on www.ailalawyer.com meet legal education and malpractice insurance requirements, and have been AILA members for at least two years.
Written by Laura Lichter, AILA President