In my column This week's Consulta Migratoria® explains the changes to the eligibility criteria for applying for a provisional waiver of the punishment law that will soon go into effect.
Each case is different and the answers vary depending on each person's immigration history.
Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before starting any procedure.
This is the column:
Not being able to return to the United States is one of the greatest fears for undocumented immigrants who aspire to obtain permanent residency. That is a real danger for thousands of undocumented immigrants when they are approved for a family or work petition and have to travel abroad to claim their immigrant visas.
The problem, with certain exceptions, is that if they lived in the U.S. illegally, upon leaving the country they are subject to the penalty law that prohibits them from returning for 3 or 10 years - unless they obtain a pardon.
But the law limited who could apply for a provisional waiver of the law of punishment within the United States to undocumented immediate relatives (spouses, parents, and unmarried children under 21) of U.S. citizens who could show that denying reentry would cause extreme hardship to a citizen parent or spouse.
Thanks to changes in the regulations, proposed in July 2015, that will change, allowing more immigrants to apply for such a waiver within the United States.
After reevaluating the rules, U.S. Citizenship and Immigration Services (USCIS) determined that they should give more immigrants the same right to apply for provisional waivers of the punishment law within the United States, allowing them to know if they will be approved before they leave the country to seek their immigrant visas.
Another key change is that they will extend the provisional waiver of the penalty law to eligible aliens who can demonstrate that it would cause extreme hardship to their spouse or parents who are permanent residents of the United States if they are denied permanent residence. Previously, extreme prejudice counted only for parents or spouses of U.S. citizens.
After the final rule is published In the next few days, an announcement will be made as to when the changes will take effect.
Who is eligible
In addition to immediate family members of U.S. citizens (spouses, parents and unmarried children under 21), the expansion includes:
Individuals selected by the Diversity Visa Program (visa lottery), their spouses and unmarried children under the age of 21.
2. Family members under the First, Second, Third and Fourth preference categories, which include unmarried children over the age of 21, married children and siblings of U.S. citizens; and spouses and unmarried children of permanent residents. (You can see the complete list of those who fall under the different family preferences by clicking here).
Foreign immigrant workers, including their spouses and unmarried children under the age of 21. This includes beneficiaries of First, Second, Third, Fourth, and Fifth preference employment petitions (priority workers, professionals with advanced degrees, skilled workers, and investors fall into these categories. You can see the complete list here).
4. Widow(er)s or Special Immigrants, including unmarried children under 21 and spouses.
Falling into one of these categories does not mean that you are automatically eligible for a provisional waiver of the punishment law. Several requirements must be met, including demonstrating extreme prejudice to a U.S. citizen or permanent resident spouse or parent.
If you are subject to the penalty law, but believe you have a legal path to permanent residency, I recommend doing the following:
Consult with an immigration attorney to see if you can apply for permanent residency in any way, including through family or work.
Applying for an immigration benefit if you do not meet all the requirements and cannot complete the process for an immigrant visa inside or outside the United States is a waste of time and money.
2. Ask the lawyer if you can apply for a provisional waiver of the punishment law.
The attorney will analyze your background, current situation and whether you meet all the requirements, including demonstrating extreme hardship to a parent or spouse. If you are likely to succeed, he or she will advise you to file the application to begin the process to obtain permanent residency.
It should be noted that the provisional waiver of the punishment law can only be requested after one of the applications described above has been approved or because you were selected in the visa lottery.
This is a complex process that requires professional legal assistance. Under no circumstances should you go to a notary or immigration consultant. By law, only an attorney or a federally accredited representative who is experienced and licensed can assist you in this process.
The new eligibility criteria for provisional pardon to the law of punishment are still in effect. no become effective. If no you are an immediate relative of a U.S. citizen who can demonstrate extreme prejudice to a U.S. citizen spouse or parent, please, do not send no application requesting this waiver until the changes authorizing other immigrants to receive this benefit are implemented.
Provisional forgiveness to the law of punishment only forgives having lived unlawfully in the United States. If an immigrant committed other offenses, including certain crimes or immigration fraud that may make him or her inadmissible to immigrate to the United States, he or she will not be eligible to apply for a provisional waiver of the penalty law.
Please share this information with your family and friends. Consult with an immigration attorney before beginning the process for permanent residency to be sure you meet all the requirements.