New Streamlined Procedures for Applying for Unlawful Presence Waivers

Provisional Waivers for Unlawful PresenceWhile the debate for comprehensive immigration reform heats up, USCIS has made small changes that have actually made things better for aspiring immigrants, instead of worse. First, there was DACA, which seems to be a success. Prosecutorial Discretion has been extremely helpful as well.

As of March 30, 2013, USCIS has implemented a new streamlined procedure for applying for unlawful presence waivers (601 waivers).

In order for this article to make sense to a person not involved with immigration matters, a little background is in order.

There is a certain misconception that if a foreigner marries a U.S. citizen, he/she will automatically be entitled to a green card. I recall watching a terrible romantic comedy called “Green Card” in the 1990’s about this. The movie was about a French guy and an American gal who got married in order for the French guy to get a green card. Even though they were supposedly married, they really hated each other. The gal only agreed to it because she was getting paid a lot of money.

Their plans got complicated when INS (this was the quaint 1990’s, so USCIS was still INS) investigated their marriage. They actually had to live together while their investigation was pending. True to all romantic comedies, they realized while pretending to be happily married that they really were crazy about each other. The rest was history. Oh yeah, the French guy got his green card.

Getting an easy green card by marrying a U.S. citizen is only true in certain situations. That is, the foreign spouse came to the country on a valid visa. In this situation, a U.S. citizen spouse can sponsor his/her foreign spouse. The foreign spouse would be able to receive approval for lawful permanent residence status relatively quickly (usually within six months).

Unlawful Presence and the 601 Waiver

If the foreign spouse came to the U.S. illegally, meaning he/she was not inspected by customs when he/she entered the country, things are much more difficult. Really difficult, in fact. There is a concept called “unlawful presence” that comes into play. When a person enters the country without inspection (illegally), he/she begins to accrue unlawful presence. There are dire consequences which will attach.

A period of unlawful presence greater than three months will trigger a three-year bar. What this means is that such person would not be eligible to receive immigration benefits for a minimum of three years. If the person leaves the country, he/she will not be permitted to return until the purgatory period has elapsed. If the period of unlawful presence is greater than six months, a ten-year bar applies. This is known among immigration practitioners as the 3/10 year bar.

The unlawful presence bar is one of the most crushing problems an immigrant can face. Even if he/she were married to a U.S. citizen, he/she would not be eligible to receive a green card, regardless of the duration of the marriage, how long he/she has lived in the U.S., or even if the marriage has produced children. The marriage may be 100% legitimate, but that won’t help one bit.

A Glimmer of Hope?

There is a tiny loophole for those who are brave enough to crawl through it. It is possible to apply for a waiver of the 3/10 year bar. If the U.S. citizen spouse can establish that he/she would suffer extreme hardship, the 3/10 bar may be lifted. The problem is that in order to apply for this loophole, the foreign spouse must leave the country. If he/she leaves the country, there is no guarantee that the waiver would be granted, and that the spouse would be allowed to return.

The processing time is uncertain as well. It could take six, twelve, or even eighteen months for the waiver to be processed and approved. In the meantime, the family is separated because one of the spouses is out of the country.

The burdens associated with applying for a waiver is one of the reasons why not too many people who qualify for it are willing to apply. No one wants to be separated from his/her family for an indefinite period of time. No one wants to leave the country without a guarantee that he/she would be able to return. For these reasons, it is difficult for an immigration lawyer to recommend going the waiver route.

The good news is that USCIS has recently amended its regulations and changed the application process. Now, the foreign spouse who is subject to a 3/10 year bar can apply for a “provisional waiver” while still in the country. This means, he/she can remain with his/her family while the waiver application is pending.

In order to get a green card, the foreign spouse must still leave the country and apply for an immigration visa at his/her home country’s consular office. However, the big difference is that with the new provisional waiver approval process, he/she will know beforehand that his/her immigration visa has been approved.

Not only has the separation issue has been addressed, but the uncertainty of the waiver application process is dealt with as well. A foreign spouse no longer has to be concerned about whether or not he/she will be approved for a waiver before leaving the country because he/she will know in advance that the application was already pre-approved.

There still is a small period of separation. But it is now only weeks rather than months or years. If things go according to plan, it should be a simple matter for the foreign spouse to go to the consular office in his/her home country to pick up an approved immigration visa.

Is this the perfect solution? No. However, it is the best solution under the circumstances. Unless Congress does away with the 3/10 year bar (which is unlikely), the waiver application process for those who have accrued unlawful presence will be necessary. There is no getting around this because it is statutorily mandated. Nonetheless, the new waiver application process is 200% less burdensome and onerous than it used to be.

Does It Make Sense to Apply for a 601 Waiver?

In the past, I would never recommend to a client who is currently in the U.S. to leave the country in order to apply for a waiver. Today, from a practical standpoint, I would have no trouble recommending to a client who qualifies to apply for a waiver. For the time being, it is the best course of action for obtaining getting a green card if you have accrued unlawful presence.

Note that the new procedures also apply to children and parents of U.S. citizens. I used the example of spouses because almost all waiver cases involve spouses.

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