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.