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What Happened to the Proposed Change to the Waiver Process?

On January 6, 2012 with much fanfare, the US citizen and immigration service announced that it would change the way certain waivers are processed. A notice of intent was posted in the Federal Register proposing a plan to reduce the amount of time family members are separated from their spouses and children under certain circumstances, while CIS processes their applications for permanent residence. At the present time certain spouses and children of United States citizens that have remained in United States unlawfully for periods of 6 months or more may be subject to a 3 to 10 year bar on returning to the United States. The 3 to 10 year bar applies principally to those foreign nationals that entered the United States without visas.

Presently and under the proposed change the 3 to 10 year bar may be waived to allow spouses and children to return to their US families if they are able to demonstrate that the United States citizen or lawful resident family member would suffer extreme hardship as a result of the separation.

The proposal on January 6, 2012 does not eliminate the bar nor does it eliminate the waiver requirements but provides for a new procedure and filing process for the waiver of unlawful presence. Before the proposal and continuing until the proposal becomes final the CIS processed the waiver only after the foreign national departs United States. Processing the waiver in this matter often results in lengthy separation of families. Under the new process proposal, the children and spouses of American citizens and lawful residents that are eligible for a visa to migrate to United States lawfully but who need the waiver will be permitted to apply for a provisional waiver before they depart the United States for their immigrant visa processing at a US consulate or embassy abroad.

This new streamlined process is available only to those individuals that are not admissible because they have accrued unlawful presence in United States and who can demonstrate extreme hardship to their qualifying US relative. All persons that are affected by this new process are remain required to demonstrate that they meet all other legal standards for admission see United States, including the requirement that they process their visa application outside United States at a US consulate.

Those persons that currently qualify for a waiver of inadmissibility under the existing requirements who are able to demonstrate the separation will cause extreme hardship will be permitted to apply for the waiver while still in United States. The new proposal will permit CIS to provide a more predictable, improved, and transparent process minimizing the separation time of families from their United States relatives. This process will further s streamline the processing for both the CIS and the Department of State offices handling this type of waiver. Thus resulting in the elimination or significantly reducing the amount of time the foreign national needs to spend abroad.

Since the proposal on January 6, 2012 the CIS is undertaking additional analysis and establishing a collaborative effort with the Department of State to develop in greater detail the streamlined process. In the coming months CIS will publish a proposed rule providing additional details and permitting public comment. Subsequently, a final rule will eventually be published implementing the process.

Again, the new rule will not change or modify the standard for approving or denying a waiver for extreme hardship rather, it only modifies and streamlines the process for filing of the waiver application. Look for more on this exciting change in the near future.

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