Category Archives: Family-Based Visas and Green Cards

Provisional Waiver Regs Are Here — And They’re Readable!

This may be a first — I’m about to compliment the writing of a U.S. government employee. That’s right, the new Department of Homeland Security regulations called, “Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives,” just out in today’s Federal Register, are surprisingly readable. And that’s saying a lot, given that they go on for about 40 pages.

Good thing the new regs are readable, too, because they’re incredibly important. They establish both eligibility and application procedures for a new waiver process. Immediate relatives of U.S. citizens who are inadmissible because they’ve been living in the U.S. unlawfully, and who are not eligible to remain in the U.S. to file their green card applications using the procedure called “adjustment of status,” can now file for a waiver of inadmissibility before, not after they leave the U.S. for the visa interview at which their green card might be granted. (The largest affected group will be immigrants who entered the U.S. without inspection.)

This pre-departure filing option is important because leaving the U.S. is a huge risk for people needing a waiver of unlawful presence. If their waiver is denied after their consular interview, their return to the U.S. will be barred for either three or ten years, depending on whether their unlawful stay lasted between 180 and 365 days or over 365 days.

Approval of a provisional waiver will allow them to depart with the knowledge that their unlawful stay won’t bar their return — and will therefore remove the fear of family separation that is blocking many potential lawful permanent residents from pursuing their green card application at all.

For details, see Nolo’s update, “DHS Publishes Procedures for Green Card Applicants to Request Unlawful Presence Waiver,” as well as its articles on ” Who Is Eligible for Provisional Waiver of Three- or Ten-Year Time Bar” and ” How to Apply for Provisional Waiver of Three- or Ten-Year Time Bar.”

Media Muddles Description of Indiana Teen’s Difficult Visa Case

Okay, I’ve practiced immigration law; I shouldn’t have had to read the news articles on Elizabeth Olivas, who got stuck in her native Mexico and almost missed graduation due to a leap-year timing glitch, five times to figure out what they were talking about.

To listen to the news tell it, Elizabeth, an undocumented citizen of Mexico who arrived at age four and was about to graduate from high school, was facing a law that says that “children of immigrant parents have until 180 days from their 18th birthday to leave the United States for their country of origin and apply for a visa.” (That’s straight from the CNN article called “Indiana student returns home from Mexico after a visa mixup.”)

But with a little pressure on the consulate, according to these reports, Ms. Olivas applied for a waiver, got a visa, and can now graduate and live happily ever after.

Huh? Any layperson, especially of the anti-immigrant variety, might be left wondering things like why she had to wait for age 18 to get a visa in the first place; how it can be so easy for an undocumented person to leave the U.S., go to a U.S. consulate and say, “Please give me a waiver and a visa to resume my life in the U.S.,” and what this oddball law about turning 18 is.

So, let’s try to clear things up.

1) Elizabeth wasn’t just any undocumented immigrant. She was the unmarried daughter of a (naturalized) U.S. citizen. That makes her an “immediate relative,” and immediately eligible for U.S. lawful permanent residence (a green card). Why couldn’t she apply for it? First off, the news mention some processing delays in the initial paperwork (all too common). Second, for her to apply for her green card in the U.S., she would have to be eligible for “adjustment of status” — a procedure allowing immediate relatives who are in the U.S. after a legal entry to avoid returning to their home country to complete the application process. I’m guessing that Elizabeth and family entered unlawfully, across the Mexican border, in which case her only choice for applying for the green card is “consular processing,” via the U.S. consulate in Mexico.

2) When the news talks about her needing to apply for a “visa,” they’re not talking about the type of visa most people think of, as in a tourist or student visa. She was applying for an “immigrant visa,” which is the rough equivalent of a green card. (Immigrants use it to enter the U.S. and claim permanent resident status, and the actual green card arrives a few weeks later.) The CNN report that I picked on earlier was actually the only one I came across to mention this, stating that Elizabeth’s father “filed an immigrant visa petition for his daughter to gain legal status.”

3) The 180-day issue arises because people who spend excessive amounts of time in the U.S. unlawfully become “inadmissible,” that is, ineligible for any U.S. green card, visa, or other entry. That law applies to everyone over the age of 18, whether or not they are children of immigrants. If someone over 18 spends more than 180 days in the U.S. unlawfully, and then leaves (perhaps to attend a visa interview at a U.S. consulate), he or she is barred from returning for three years. A 365-day unlawful stay will get the person a ten-year bar on returning. Once Ms. Olivas turned 18, the clock started ticking, such that her unlawful presence would trigger a time bar. And due to her lawyer using a calendar that forgot leap year, she accrued 181 days of unlawful presence. Oops.

4) With 181 days of unlawful presence on Ms. Olivas’s record, her only hope for the U.S. consulate to approve her for an immigrant visa/green card was to apply for a waiver, which one can apply for only by showing that extreme hardship would result to U.S. citizen or permanent resident close relatives in the United States if the applicant were denied the visa. Again, Ms. Olivas was in a special position — many undocumented immigrants do not have qualifying relatives like this, and so would not be able to apply for the waiver.

That’s complicated stuff, I know. There’s a good reason the news reports didn’t devote as much space to this topic as I did. Nevertheless, with the fast-and-loose reporting about immigration laws that we see in this and other cases, it’s no wonder that strange rumors abound in this area. People start believing weird things, like that a new amnesty has been authorized, or that undocumented people could apply for green cards — or even U.S. citizenship — if they would just take a little initiative, and so on. The truth is inevitably more complicated.

BIA Ruling Eases Use of Advance Parole by Adjustment Applicants

Don’t miss this recent update on Nolo’s site if you are applying for a green card in the U.S. through the procedure known as “adjustment of status,” might like to travel while awaiting your green card interview, but were afraid to leave because your accrual of unlawful presence in the U.S., might result in you being found inadmissible upon your return.

The Board of Immigration Appeals has held that departures under Advance Parole with an adjustment of status application pending do NOT trigger the unlawful presence bars. You can travel after all.

There’s more information here, under “New Ruling Allows Applicants for Adjustment of Status to Leave U.S. With Advance Parole Without Facing Time Bars Upon Return.

Don’t Be Scammed By Immigration Practitioners Saying You Can Apply for 3/10 Year Bar Waivers Now!

If you read my earlier blog, called “Hopeful News for Immigrating Spouses of U.S. Citizens Stalled by the 3- and 10 Year Time Bars for Unlawful Presence,” you hopefully learned two things:

  1. I sometimes give up on presenting complex immigration law matters in a short, catchy headline, and
  2. the hopeful news discussed, namely the opportunity to apply for a time-bar waiver BEFORE, not after leaving the U.S., had NOT happened yet.

And it still hasn’t happened, though USCIS is working on figuring out the exact procedures. Which is particularly important to know given that, according to suggestions by USCIS, scammers are already out there taking people’s money to file this supposed new waiver. A USCIS press release issued on February 22 explains:

These procedures are not in effect and will not be available to potential applicants until USCIS publishes a final rule in the Federal Register specifying the effective date. USCIS plans to publish a notice of proposed rulemaking in the coming months and will consider all comments received as part of that process before publishing a final rule.

·         Do not send an application requesting a provisional waiver at this time. USCIS will reject any application requesting this new process and we will return the application package and any related fees to the applicant. USCIS cannot accept applications until a final rule is issued and the process change becomes effective. 

·         Be aware that some unauthorized practitioners of immigration law may wrongly claim they can currently file a provisional waiver application (Form I-601) for you. These same individuals may ask you to pay them to file such forms although the process is not yet in place. Please avoid such scams. USCIS wants you to learn the facts about protecting yourself and your family against scammers by visiting www.uscis.gov/avoidscams.

If you already have an immigrant visa interview with the U.S. Department of State, we strongly encourage you to attend. The Department of State may cancel your immigrant visa registration if you fail to appear at this interview.

Keep your eyes on this blog and the headlines for news of when the new waiver is actually available — and the form to go with it. Scammers who attempt to file for this waiver on your behalf will most likely use the standard waiver Form I-601; but USCIS has indicated that it will likely create a new form just for this waiver.

And before you believe a supposed attorney or other practitioner, check out his or her bar membership (it might be in another state than your — that’s okay) and interview more than one lawyer before choosing one.

Hopeful News for Immigrating Spouses of U.S. Citizens Stalled by the 3- and 10-Year Time Bars for Unlawful Presence

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 proposing a new system in which the intending immigrants will be able to apply for a waiver of inadmissibility — essentially, forgiveness of their unlawful presence — before, not after leaving the United States for their consular interview. If the waiver is granted, they can safely leave for their consular interview, knowing that if the consulate approves their immigrant visa, they can immediately return to the U.S. and become lawful permanent residents.

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).

The proposed change won’t be big news 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. — it was only the U.S. consulates that could enforce a penalty for unlawful presence.

By contrast, 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. (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 is 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 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, if USCIS successfully implements this, be a huge source of reassurance.

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. 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.”

In the meantime, if you’ve 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’s 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. But remember, this new policy isn’t in place yet. Consult an immigration attorney for the latest news and an analysis of your prospects for getting a waiver before doing anything further — and especially before leaving the United States.

A final note to immigrants whose petitioner is a lawful permanent resident: The new policy is unfortunately not designed to help you. Look into whether your petitioner can apply for U.S. citizenship as soon as eligible.