On Jan 11 2012 by Klasko Immigration

USCIS Proposes Allowing Certain Foreign Nationals The Ability To Apply For A Waiver Stateside

Foreign nationals who are immediate relatives of U.S. citizens currently in the U.S. seeking to become lawful permanent residents, but who originally entered without inspection, could soon benefit from a change in the waiver application process being proposed by U.S. Citizenship and Immigration Services. On Friday, January 6, 2012, USCIS announced that it intends to develop a framework allowing certain foreign nationals who have accrued unlawful presence in the U.S., and are thus inadmissible without a waiver, to file their waiver applications (Forms I-601) stateside.

This change would significantly reduce the time that U.S. citizens are separated from their immediate relatives, as foreign nationals are currently required to remain outside the U.S. while their immigrant visa application and their waiver application are adjudicated. This USCIS proposal clarified that only foreign nationals who are immediate relatives of U.S. citizen spouses or parents would be able to take advantage of this change. This proposal is not expected to be implemented until the end of this year. We will continue to monitor and report on the progress of this important development.

Background

Immigration law bars certain foreign nationals from being admitted into the U.S. (receiving permanent residence or any other visa)  if they have previously accrued unlawful presence in the U.S. – whether by entering the U.S. without being inspected by an immigration officer or by overstaying the time allotted to them by a nonimmigrant visa obtained in the past. Those who have accrued between 181 days and 1 year of unlawful presence are subject to a 3-year bar before becoming admissible into the U.S. Those who have accrued more than 1 year of unlawful presence are subject to a 10-year bar before becoming admissible into the U.S. Immediate relatives of U.S. citizens who entered the U.S. on a nonimmigrant visa and later overstayed their time, or were admitted and inspected by an immigration officer on some other basis, are able to adjust their status without leaving the U.S. and without needing to obtain a waiver for the unlawful presence they accrued in the U.S. – immigration law forgives them for the unlawful presence. However, those immediate relatives of U.S. citizens who have accrued unlawful presence and who cannot demonstrate having been admitted and inspected by an immigration officer upon entry are unable to apply for adjustment of status from within the U.S. Immigration law requires that they depart the U.S. and apply for an immigrant visa at a consulate post abroad.

Unfortunately, this departure is what triggers the 3- and 10- year bars and subjects them to the requirement of the filing of the application for waiver of this ground of inadmissibility.  To obtain a waiver of unlawful presence, foreign nationals in this predicament are required to demonstrate that, if this application for a waiver is not granted, their U.S. citizen or lawful permanent resident spouse or parent will suffer extreme hardship. Because this waiver is discretionary, the individuals must also warrant a favorable exercise of discretion.  While the term “extreme hardship” has not been exactly defined, this term has been interpreted very narrowly and involves the balancing of various factors.

Current Practice

The current practice of the filing and adjudication of these waivers has required that the foreign national depart the U.S. and file the waiver with the consular post processing his or her immigrant visa. This has caused significant delays during which the foreign nationals remain separated from their immediate U.S. citizen- or lawful permanent resident-relatives while the waiver is adjudicated. Moreover, the foreign national has no guarantee when he or she leaves the U.S. that the waiver will be granted, and thus, he or she faces the prospect of leaving the U.S. without the ability to return for either three or ten years.

The waivers are adjudicated by USCIS offices having jurisdiction over the particular consular post where the foreign nationals applied for their immigrant visas, by a newly-created International Operations Support Branch of USCIS located in Anaheim, California, or –at times – the USCIS Nebraska Service Center. If USCIS denies the application for waiver, their decision may be appealed to the Administrative Appeals Office (“AAO”). Because the processing times for these waiver applications at the USCIS level are currently several months, and at the AAO level are over 2 years, this delay causes significant additional hardship to the families of the foreign nationals, from whom they are currently required to be separated for the duration of the adjudication of the application, without the grant of which their immigrant visa cannot be processed.

USCIS Proposal

The contemplated change in processing is intended to reduce this burden of separation. It is, however, limited only to foreign nationals whose spouses and/or parents are U.S. citizens, and not lawful permanent residents. This change would allow the qualifying foreign nationals to file their applications for waiver of grounds of inadmissibility prior to departing the U.S. and remaining in the U.S. while the USCIS adjudicates their application. If successful, USCIS would grant a provisional waiver prior to, and dependent upon, their departure to attend their immigrant visa interview at a consular post. While the procedural details were left out of the USCIS announcement, it is anticipated in the immigration legal community that the unlawful presence waiver applications would be adjudicated by the International Operations Support Branch of USCIS in Anaheim, CA, as well as the USCIS Nebraska Service Center.

In addition to significantly reducing the time foreign nationals who have accrued unlawful presence would be forced to spend separated from their U.S. citizen immediate relatives, USCIS expects that this change would streamline the process of waiver adjudication and visa processing for the foreign nationals in question, reducing the processing time even further due to the lessened amount of time the case would have to be moved back and forth between the U.S. Department of State, the various consular posts and USCIS. USCIS also expects this to produce a welcome cost reduction associated with the processing of such cases, as the adjudicators would be located in the United States, rather in international USCIS offices.

This change is not expected to be implemented until the end of this year, and its details are still largely unclear. USCIS is expected to issue a proposed rulemaking that will address this change, along with all of its fine points and new processes. Of course, as always, with such proposals, questions linger as to whether this change will cause a further backlog in the adjudication, as well as an overall reduction in approval rates, for unlawful presence waivers. All of this remains to be seen once- and if- the rulemaking for this change is implemented and it takes place. However, one thing is clear – it seems to be the current administration’s step toward alleviating some of the painful delays caused by the backlogged and often inefficient processes within immigration law.