This week in my column "Consulta Migratoria" of LaOpinion.com I explain what the provisional waiver to the punishment law is and how the application process works. Here is the column:
The process to apply for the Provisional Unlawful Presence Waiver will become effective on March 4, 2013. In the coming days the United States Citizenship and Immigration Services (USCIS) will provide more information about the application process and will make available the form to apply for this immigration benefit. The process will be difficult and not everyone will be eligible to apply for this immigration benefit.
The new regulations will 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.
The new regulations will allow undocumented immediate family members of citizens applying for permanent residency 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.
The process will work as follows: USCIS will examine the case. If it deems it valid, it will grant a provisional waiver. The undocumented family member will then be required 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 will be able to return to the U.S. on an immigrant visa.
Under current law, parents, spouses or unmarried children under the age of 21 of alien 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 3 to 10 years. There are exceptions.
The government may grant a waiver, known as 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 a provisional waiver of undocumented presence 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 petition (I-130) 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 (USDOS) the fee for processing the immigrant visa.
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.
An immediate relative of a citizen will NOT be eligible to apply for a provisional waiver if the person:
1. You have an application pending with USCIS for adjustment of status to lawful permanent resident.
2. You are in removal proceedings unless the case is administratively closed by an immigration judge and you do not have any pending hearings before applying for a provisional waiver of the penalty law.
3. Is subject to a final order of deportation or reinstatement of a previous removal order.
4. May be declared inadmissible at the time of the consular interview for reasons other than undocumented presence.
5. You have already been scheduled before January 3, 2013 for an immigrant visa interview at the U.S. Embassy or Consulate abroad.
Next week I will give more details and explain how to apply for provisional pardon to the law of punishment.