Upcoming Provisional Waiver Option for Immediate Relatives of U.S. Citizen Facing Three- and Ten-Year Time Bars

Nothing is final yet, but this is big news: At last, spouses and children of U.S. citizens who are living in the U.S. illegally and afraid to file for their green cards because they might, upon attending their interview at an overseas U.S. consulate, be barred from return by a three- or ten-year penalty for their past unlawful presence, may be given a way of reducing their risk.

U.S. Citizenship and Immigration Services (USCIS) is in the process of implementing a new system in which the intending immigrants will be able to apply for a provisional waiver of inadmissibility — essentially, forgiveness of their unlawful presence — before, not after leaving the United States for their consular visa interview. If the waiver is granted, they can safely leave for the interview, knowing that if the consulate approves their immigrant visa, they can immediately return to the U.S. and become lawful permanent residents. If denied, they can at least remain in the U.S. with their family and explore any possible legal options – though there is a risk that USCIS might, in some cases, institute removal proceedings.

Who the Provisional Waiver May Help

The main people that this change will help are undocumented immigrants who entered the U.S. without inspection and who have married U.S. citizens, or who are the children of U.S. citizens, over age 18 but under age 21 and unmarried. (If they’re under 18, they can’t accrue unlawful presence, and can’t apply for this provisional waiver anyway).

People who entered the U.S. without inspection (a visa, a visa waiver, or some other approval by an immigration officer) have no right to adjust status in the U.S.—that is, to have their application decided at a local USCIS office. (Rare exceptions exist, for people who had a visa petition or labor certification filed for them many years ago, and were grandfathered in under the old law called 245(i).)

Their only procedural choice has been to have their green card application processed through a U.S. consulate. But that created a trap for them. If, while they were over the age of 18, they had accrued unlawful presence in the U.S., then their consular interview was the time when they could be punished by a time bar on returning to the United States. People who had accrued unlawful presence of 180 days (about six months) or more would face a three-year bar on return; those who had accrued unlawful presence of one year or more would face a ten-year bar on return.

There was, and still is, a waiver of these time bars available, to applicants who could prove that their U.S. citizen spouse or parent would face extreme hardship if the applicant were denied the immigrant visa. But family separation alone — however heart-wrenching — wasn’t considered “extreme hardship.” And without a sense of whether the waiver would be granted by the U.S. consulate, many people were afraid to take their chances. Having the waiver decision made before departure will be a huge source of reassurance.

Who the Provisional Waiver May Not Help

Under USCIS’s initial proposals, the applicant will need to be solely inadmissible for reason of unlawful presence in the U.S. of 180 days or more. If the applicant is potentially inadmissible for other grounds, and may need a waiver of, for example a health condition or criminal conviction, that person will not be eligible to use this provisional waiver process.

The proposed change also will not be of much interest to spouses and children of U.S. citizens who entered the U.S. legally. That’s because, as immediate relatives of U.S. citizens, they have been eligible to submit all their paperwork in the U.S. and “adjust status” to permanent residence all along, without ever having to set foot in a U.S. consulate. Even if they overstayed their entry visas and lived in the U.S. unlawfully, they were not punished for their unlawful presence in the U.S. (unless arrested by immigration authorities) — it was only the U.S. consulates that could enforce a penalty for unlawful presence.

Risks of Removal Proceedings If Waiver Application Denied

What if the waiver is refused — will the immigration authorities come after the person, now knowing that he or she lives in the U.S. illegally? All indications are that they will only do so in high-priority cases, such as where the applicant has a criminal record.

What to Do Right Now

Do NOT attempt to take advantage of this new rule until it is final and you have consulted with an immigration attorney. In particular, watch out for scammers who claim they can file the application for you now. That’s impossible – the form with which to apply hasn’t even been developed yet. (USCIS intends to create a special one in place of the usual Form I-601 waiver form.)

In the meantime, if you have been waiting to apply for a green card, now would be a good time to file the visa petition that starts the process, on USCIS Form I-130. That is especially true if you have children who might turn 21 within the next couple of years, after which time they will no longer be helped by this rule.

A final note to immigrants whose U.S. petitioner (sponsor) is a lawful permanent resident (green card holder): The new policy is unfortunately not designed to help you. Look into whether your petitioner can apply for U.S. citizenship as soon as he or she is eligible.

For details on this and other aspects of the proposed new policy, see the USCIS website at www.uscis.gov; in particular, the fact sheet called ”USCIS to Propose Changing the Process for Certain Waivers” and the "Provisional Unlawful Presence Waivers: Questions and Answers."