In my column This week's Consulta Migratoria® explains what the changes in the provisional waiver regulations mean and who benefits from the punishment law.
This is the column:
Finally, it was announced when changes to the process for applying for the Provisional Unlawful Presence Waiver that will help thousands of family members of U.S. citizens or permanent residents when they apply for permanent residency will go into effect.
According to the U.S. Citizenship and Immigration Services (USCIS), the changes will take effect on August 29, 2016. More information about the application process and the new form to apply for this immigration benefit will be made available soon.
Table of Contents
The process will continue to be difficult and not everyone will be eligible.
The new regulations will allow certain undocumented family members of U.S. citizens and permanent residents, such as parents, spouses, unmarried children and siblings, and their spouses and unmarried children under the age of 21 who are applying for permanent residency, to apply for a provisional waiver of the law against punishment for living here illegally and find out if they will be approved before they leave the country. This would reduce the time of family separation while the application is being processed.
How the process will work
USCIS will review the case. If it deems it valid, it will grant a provisional waiver of the law of the punishment for living illegally in the U.S. The undocumented family member will then be required to travel to his or her home country for an interview with a consular officer.
If they detect no problems, they will confirm the provisional waiver and the individual will be able to return to the United States on an immigrant visa.
Under current law, certain undocumented family members of citizens or permanent residents who entered the U.S. legally or illegally and are currently undocumented and not covered by 245(i) are eligible to apply for permanent residence, but must leave the country to seek an immigrant visa in their home country. 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 their re-entry into the U.S. for a period of between 3 to 10 years. There are exceptions.
The federal government may grant a waiver if the U.S. citizen or permanent resident demonstrates that being separated from his or her undocumented family member would cause "extreme hardship" or "extreme prejudice," including economic, health, education, and other hardships.
Conditions for a provisional waiver of the law of punishment under new regulations:
- Be physically present in the United States.
- Be at least 17 years of age.
- Be the beneficiary of an alien relative petition (Form I-130), alien immigrant worker petition (Form I-140), or petition for Amerasian, widow(er), or special immigrant (Form I-360) already approved by USCIS.
- Be selected by the U.S. Department of State (USDOS) to participate in the Diversity Visa Program, known as the visa lottery.
- Be a spouse or unmarried child under the age of 21 of a principal beneficiary of an approved immigrant visa petition (Forms I-130, I-140, and I-360), or have been selected in the visa lottery.
- You are in the process of applying for an immigrant visa and have already paid the immigrant visa processing fee to USDOS.
- Be inadmissible to the U.S. solely for having lived unlawfully in the U.S. for more than 180 consecutive days during a single stay after April 1, 1997.
- Demonstrate that denying permanent residence would result in "extreme hardship" or "extreme prejudice" to a U.S. citizen or permanent resident spouse or parent.
Conditions under which an undocumented no will be eligible to apply for a provisional waiver of the punishment law:
- You have an application pending with USCIS for registration of permanent residence or adjustment of status (Form I-485).
- You are in removal proceedings, unless the case is administratively closed by an immigration judge and you have no pending hearings before applying for a provisional waiver of the penalty law.
- You are subject to a final administrative order of removal, exclusion or deportation, including orders of removal or deportation in absentia (in absentia order), unless USCIS has already approved an application to enter the U.S. after you have been deported or removed (Form I-212).
- Is subject to a final decision by the U.S. Department of Homeland Security reinstating a prior order of removal, exclusion, or deportation and received Form I-871, Notice of Intent/Decision to Reinstate Prior Order, before the immigrant files an application for a provisional waiver of the law of unlawful presence in the U.S. or while the application is pending.
- You are subject to an unexpired order of voluntary departure issued by an immigration judge or the Board of Immigration Appeals.
- You cannot show that denying permanent residence would result in "extreme prejudice" or "extreme hardship" to a spouse or parent who is a U.S. citizen or permanent resident.
Next week I will provide more details and explain how to apply for a provisional waiver of the law against punishment for having lived in the U.S. illegally. In the meantime, consult with an immigration attorney before beginning any immigration proceedings.