Is Stateside Processing Of Unlawful Presence Waivers About To Become A Reality?

It appears so.

US Citizenship and Immigration Services (USCIS) is likely to issue its final rule on the stateside processing of unlawful presence waivers before the end of the year.

The new processing procedure will apply to certain foreign nationals who entered the country without inspection but are eligible for green cards based on marriage to a U.S. citizen or (hopefully) legal permanent resident.  Under the current law foreign nationals who entered without inspection generally must depart the U.S. to apply for a green card abroad.  But once they depart the U.S. they banned from returning for up to 10 years.  The law does include a waiver for foreign nationals if they can show refusal of their admission will cause “extreme hardship” to their U.S. citizen or legal permanent resident spouse.  However, the overseas waiver application can take months subjecting families to separation from their loved ones.  The new procedure will permit certain foreign nationals to apply for the waiver before departing the U.S.  This will not only promote family unity but will reduce backlogs at U.S. consulates abroad and give government officials the time they need to prevent terrorists, drug dealers, violent criminals and other dangerous people from entering the U.S.

Importantly, the stateside waiver process does not change the law.  Only Congress can do that.  Foreign nationals who came to the U.S. without inspection will still be subject to a 3 or 10 year bar to readmission once they depart the U.S.  Only those that can demonstrate that refusal of a green card would subject their spouse to extreme hardship will be considered for a waiver.

About David Leopold
Past President American Immigration Lawyers Association (AILA), In-the-Trenches practicing immigration Attorney, Blogger, Activist, Photographer, Educator, World Traveler. All opinions are my own.

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