On January 6, 2012, the U.S. Department of Homeland Security (DHS) proposed changes in how some waiver applications will be processed. Please note that at this time, the changes are not yet in effect. We do not know when the changes will take effect, but we are hopeful that they might take effect later this year. Please consult with a knowledgeable immigration attorney before taking any action.
The Current Process
If you entered the United States without permission, and you have a spouse or a parent who is a U.S. citizen, in most cases you must leave the United States and apply for an immigrant visa in another country, usually your home country. Unfortunately, under U.S. immigration laws, when you leave the United States, you are barred from re-entering the United States for a certain period of time, usually 10 years (and in certain cases, 3 years). You may apply for an immigrant visa at the U.S. Consulate in another country, but you must also apply for a waiver of your unlawful presence in the United States. In order to be granted the waiver, you must establish that it would be an extreme hardship for your spouse and/or parent if you are not allowed to return to the United States. The process can take a long time, and sometimes requires you to be outside the United States for a year or more.
The Proposed Changes
If you have a U.S. citizen spouse and/or a U.S. citizen parent, and if you need a waiver only for your unlawful presence in the United States, DHS has proposed to allow you to apply for a provisional waiver while you are still in the United States. If DHS grants the provisional waiver, then you still must travel outside the United States and apply for an immigrant visa and the waiver at the U.S. consulate in the other country.
We hope that the proposed change will do a couple of good things for you, if you are eligible:
1. The proposed change will allow you to apply for the provisional waiver and see if DHS approves the provisional waiver before you leave the United States.
2. The proposed change will shorten the length of time that you will need to be outside the United States.
Please consult with a knowledgeable immigration attorney before taking any action.