Posts Tagged ‘NEW IMMIGRATION RULE SHORTENS FAMILY SEPARATION DURING ‘GREEN CARD’ WAIVER PROCESS 3/10 YEAR BAR ALIEN CREWMEN JUMP SHIP’
|NEW IMMIGRATION RULE SHORTENS FAMILY SEPARATION DURING ‘GREEN CARD’ WAIVER PROCESS
Thursday, January 3rd, 2013
Secretary of Homeland Security Janet Napolitano announced today Wednesday January 3, 2013 new immigration rules that will allow many American citizens — perhaps hundreds of thousands — to avoid long separations from immediate family members who are illegal immigrants as they apply for their green cards to become legal residents. The rule essentially allow spouses, children, and parents of U.S. citizens to apply for provisional waivers before returning to their country of origin to complete the visa application process.
The immigration new rules create a waiver that bypasses an inconsistent law passed in 1996 which had presented Americans with the prospect of being separated for up to a decade from immigrant spouses, children or parents who were applying for the legal documents known as green cards.
It is generally straightforward for American citizens to obtain green cards for foreign-born spouses or minor children, and in some cases for parents. But if the immigrants entered the United States illegally, they must return to their native countries to receive their visas from American consulates there. However, under a 1996 law, once illegal immigrants leave this country, they are barred automatically from returning for at least three and as many as 10 years. Even immigrants who did not incur any bars to re-entry were often stranded overseas for many months while consulates completed their applications.
Until now, the risks for those immigrants of leaving the United States to return to their native countries to pick up their visas, even ones that were already approved, had been so great that countless families decided not to apply, adding to the numbers of immigrants living illegally in this country.
To be specific, under the current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents must leave the U.S. and obtain an immigrant visa abroad. Individuals who have accrued more than six months of unlawful presence or classified as inadmissible such as those who entered with false documents, alien crewmen who ‘jumped ship’ or aliens who entered without inspection (EWI) while in the United States must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the United States after departing to obtain an immigrant visa. Under the existing waiver process, which remains available to those who do not qualify for the new process, immediate relatives cannot file a waiver application until after they have appeared for an immigrant visa interview abroad and the Department of State has determined that they are inadmissible.
In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent. “Extreme hardship” is a legal standard for an applicant of a waiver to prove so it is best to consult an immigration attorney. USCIS will publish a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver, for individuals to use when applying for a provisional unlawful presence waiver under the new process. The application fee for is $585.
Under the new provisional waiver process, immediate relatives must still depart the United States for the consular immigrant visa process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad. Individuals who file the Form I-601A must notify the Department of State’s National Visa Center that they are or will be seeking a provisional waiver from USCIS. The new process will reduce the amount of time U.S. citizen are separated from their qualifying immediate relatives.
The immigration authorities will begin accepting applications for the waivers on March 3, 2013. Administration officials first announced the policy change a year ago, but they have been receiving public comments and making revisions before publishing the final rules.
With the new rules, Americans’ family members can apply in the United States for a waiver from the bars to re-entry, before they leave to pick up their visas. Officials estimated the time immigrants would have to spend out of the country would be reduced to “a matter of weeks.”“ One of the critical benefits is that the individual will not be separated from the United States citizen family member during the application process,” said Alejandro Mayorkas, the director of United States Citizenship and Immigration Services, the agency that issues green cards.
For immigrants, immigration officials said, having an approved waiver in hand before leaving the country would also eliminate many doubts about whether they would ultimately receive their visas.
Sources: New York Times, US Citizenship and Immigration Services, Department of Homeland Security
Attorney Sid Garbanzos is a graduate of the City University of New York School of Law and is admitted to practice in New York and Washington, D.C. Practice areas include: Commercial & Civil Litigation, New York Landlord-Tenant and Immigration, Please note that this article is written for a gratuitous purpose only and no attorney-client relationship is created in this publication. This article is not, nor intended to be legal advice. The reader should consult with a reputable lawyer based on his or her individual circumstances. Garbanzos Law Firm at (718)725-7324
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