Stateside Waiver – Curray York & Associates

January 16, 2013by SCwpadmin SCwpadmin No Comments

More Facts on the New Stateside Provisional Waiver Rule

The new stateside provisional waiver rule will result in dramatically reduced periods of separation between U.S. citizens and foreign nations in some case. However, not all foreign nationals who have a U.S. citizen immediate relative (spouse, parent, child over 21 years of age) will benefit from this rule. It is important to understand the scope and limitations of this new rule.

To be eligible for the new provisional unlawful presence waiver an individual must meet the following criteria:

You are physically present in the U.S.

You are at least 17 years of age at the time of filing.

You are the beneficiary of an approved immigrant visa petition classifying you as the immediate relative of a U.S. citizen.

You have an immigrant visa case pending with the U.S. Department of State for which you have already paid the immigrant visa processing fee.

You believe you are, or will be at the time of the immigrant visa interview, inadmissible based on having accrued a certain period of unlawful presence in the United States.

You meet all of the requirements of the provisional unlawful presence waiver as listed in the regulations, form I-601A and its instructions.

Individuals are not eligible for provisional unlawful presence waivers and their applications will be rejected or denied in the following circumstances:

You fail to meet the eligibility requirements discussed above.

You have a pending form I-485 with USCIS to adjust your status to that of a permanent resident

You are in removal proceedings unless your removal proceedings are administratively closed and have not been re-calendared as of the date of filing of the I-601A.

You have been ordered removed, excluded, or deported from the United States.

You are subject to reinstatement of a prior removal order.

DOS acted to schedule your immigrant visa interview prior to January 3, 2013, even if you fail to appear or you or DOS cancelled or rescheduled the interview on or after January 3, 2012.

You do not establish that a refusal of your admission to the United States would result in extreme hardship to a U.S. citizen spouse or parent, or that your application should be approved as a matter of discretion.

USCIS has reason to believe that DOS may find you inadmissible at the time of your immigrant visa interview for grounds other than unlawful presence.

These eligibility requirements and grounds for ineligibility emphasize a couple of key points. First, the program is only available when there is hardship to a U.S. citizen spouse or parent, not a lawful permanent resident spouse or parent. The new rule also is not available for individuals who need waivers other than the waiver for unlawful presence. For example, individuals that need fraud waivers or waivers for certain criminal offenses are not eligible for this new waiver procedure. An individual may become eligible for the program even if they are in removal proceedings if they are able to successfully petition the government to administratively close their removal proceedings. Of course, the individual must also meet the other eligibility requirements describe above.

To learn more about this exciting new rule and determine whether or not you or a relative is eligible for the program, please contact us for a consultation.

January 4, 2013by SCwpadmin SCwpadmin 23 Comments

The Long Awaited "State-side Waiver" Has Arrived!

On January 6, 2012, the Department of Homeland security published a proposed rule that would change the process for how certain undocumented relatives of United States citizens apply for a waiver of the time they were in the United States without permission. U.S. Citizenship and Immigration Services stated that they received over 4,000 comments on the proposed rule. A year later, on Wednesday January 2, 2013, the final rule was issued!

Many undocumented relatives of U.S. citizens who are applying for permanent residence must leave the United States and complete the process at a consulate in their country of birth. The Catch-22 of the process has been that once the person departs the United States, the immigration law says that the person must wait in their birth country for ten years as punishment for the time they were unlawfully in the U.S. The person can apply for a waiver of this punishment, but, prior to the change under the final rule, the application for the waiver could only be made at the consulate abroad after the interview. The processing of those waiver applications often takes a year or more. During that time the husband and wife, parent and child, etc. are often separated. The result of the waiver processing abroad has been that many families found the risks of having the undocumented family member leave the United States to complete the processing of the permanent resident application and waiver was too great and decided not to apply, adding to the numbers of undocumented people living in the U.S.

The“state-side waiver” process aims to reduce the risk of prolonged family separation by allowing the applicant for permanent residence to apply for and receive an approved waiver prior to departing the United States for the consular interview. As a result, the period that the applicant for permanent residence will have to spend in the country of birth could be reduced to as little as a week.

Immigration will begin accepting applications for the new waivers on March 4.

October 9, 2012by SCwpadmin SCwpadmin 95 Comments

Proposed Stateside Waiver Process

Currently, many people who are applying for lawful permanent residence have to leave the United States and request the immigrant visa from a U.S. consulate abroad. Since a large percentage of these applicants were in the United States for more than a year without authorization, they need a waiver of that ground of inadmissibility before they can be granted the immigrant visa to reenter the U.S. The waiver application process abroad usually results in months or even years outside the U.S. and separation from family. In part to remedy these long periods of family separation, in January of this year, U.S. Citizenship and Immigration Service published a Notice of Intent for proposed rulemaking in the Federal Register. This notice proposed a plan to transfer the adjudication of the waiver applications from abroad to processing in the United States before the applicant has to travel. Since the decision on the waiver takes place before the applicant leaves for the interview at the consulate abroad, the waiting time outside the United States and the uncertainty of the waiver outcome would be greatly diminished. As of this writing on October 4, 2012, the proposed “stateside waiver” procedure is not yet in effect. There is no guarantee that the proposed rule will ever go into effect. However, there is strong indication that the change in the process will occur and many speculate that it will be final before the end of this year.