This week in my Consulta Migratoria column, I answer a reader's question. Each case is different and the answers vary according to the immigration history of each person. Here I provide a general answer to your questions. Please consult with an immigration attorney to receive personalized legal advice before beginning any process.
I am a citizen and have been married since 2001 to a Mexican national who entered the United States illegally in 1996. Together we are raising my three children from a previous relationship. My husband's criminal record is clean. I have serious health problems and my husband works to support our home and pay for my medical expenses. How can I fix this under the new waiver of punishment law? - Patricia M.
Patricia, you may be able to help your husband obtain permanent residency in the United States with the help of the new Provisional Unlawful Presence Waiver, which went into effect on March 4, 2013. This regulation is being implemented by the U.S. Citizenship and Immigration Services (USCIS) and 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.
You must file a family petition with documentation that clearly demonstrates your U.S. citizenship and that you have a bona fide marriage.
When your family petition is approved, your husband may apply for the new provisional waiver of the punishment law if he meets the requirements.
The provisional waiver of the penalty law allows undocumented immediate relatives of U.S. citizens who are applying for permanent residence to file an application for a waiver of the penalty law and find out if they will be approved before they leave the United States. This would reduce the time of family separation while the process is underway.
Under current law, parents, spouses or unmarried children under the age of 21 who are aliens of U.S. citizens who entered the country legally or illegally and who are currently undocumented and not covered by 245(i) 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 for more than 180 consecutive days after April 1, 1997, they are subject to the "penalty law" which prohibits them from re-entering the United States for a period of between 3 to 10 years. There are exceptions.
USCIS 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.
The new regulation allows for an interim waiver of the punishment law if the person:
1. Is physically present in the United States.
2. You are at least 17 years of age.
3. Is the beneficiary of an approved immigrant visa family petition which classifies the person as an immediate relative of a U.S. citizen.
4. You are actively working on the process of applying for an immigrant visa and have already paid the U.S. Department of State the immigrant visa processing fee.
5. You have no other misdemeanors that would make you inadmissible to immigrate to the United States.
6. You can show that denying permanent residence would result in extreme hardship to a spouse or parent who is a U.S. citizen.
Patricia, it is extremely important that you consult with an immigration attorney before beginning any immigration proceedings on behalf of your husband because not everyone is eligible for a provisional waiver of the penalty law.
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