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.
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. 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.
3. 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. 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.
Please contact Law Office of Jessica Y. Meng for further questions,