Yesterday the U.S. Department of Homeland Security announced a proposal to modify the process for obtaining a waiver under the "law of punishment". This change could help thousands of U.S. citizens who have undocumented immediate family members - parents, spouses and unmarried children under the age of 21 - when they apply for permanent residency.
Under the new proposal would allow undocumented immediate family members of citizens who are applying for permanent residency to file an application for a waiver of the penalty law and find out if they will be approved before leaving the United States. This would reduce the time of family separation while the process is underway.
If the proposal were to pass, it would work as follows: U.S. Citizenship and Immigration Services (USCIS) would review the case. If it deems it valid, it would grant a provisional waiver. Then, the undocumented family member would have to comply with the requirement to travel to his or her home country and be interviewed by a consular officer. If no problems are detected, the permit will be confirmed and the person could return to the U.S. on an immigrant visa.
Unless covered by 245(i), parents, spouses or unmarried children under the age of 21 of U.S. citizens who entered the country illegally and are currently undocumented are eligible to apply for permanent residence, but must leave the country to seek a visa in their home country. The problem is that if they were in the country illegally, they are subject to the "penalty law" which prohibits them from re-entering the United States for a period of 3 to 10 years. There are exceptions.
The government may grant a waiver if the citizen demonstrates that separation from his or her family member would cause "extreme hardship," including economic, health, or humanitarian hardship.
Unfortunately, the new proposal will only benefit immediate relatives of citizens, not permanent residents. In addition, in order for the undocumented relative to qualify to apply for a provisional waiver within the country, he or she cannot have any other misconduct that would make him or her inadmissible to immigrate to the United States.
All those who do not qualify for the provisional waiver must travel out of the country to apply for permanent residency and apply for a waiver to re-enter the U.S.
In fiscal year 2011, the government received 485,000 petitions from U.S. citizens on behalf of their immediate family members and 23,000 applications for pardons.
According to government reports, the intention is to implement this new measure quickly, possibly during this fiscal year. As it is not yet in effect, do not submit any applications for a provisional waiver as USCIS will return your documents to you without processing them.
Please consult with an immigration attorney before beginning the process for permanent residency to be sure you meet all the requirements.