Immigration has announced new processing rules which will help applicants who must process their cases outside the United States because they need a waiver (immigration pardon) of their unlawful presence here, and who are married to a U.S. citizen or are the parent of an adult U.S. citizen
Quick advice
If you entered illegally across the border and are married to a U.S. citizen, or if you are married to a U.S. citizen or are the parent of an adult U.S. citizen and you have an approved, current (front of the waiting list) immigration petition (like an I-130 family petition), you should contact an attorney to talk about this program right away.
Other people who may want to learn more about the program include spouses and adult children of permanent residents, and adult children of citizens whose parents have not yet applied for them.
Questions and answers
What does the rule do?
It will permit applicants who need a waiver (immigration pardon) of their unlawful presence in the U.S. to get a decision on their waiver applications while they are still in the United States. This is a change from the current rule, which requires these people to apply for their waivers overseas, after having their cases denied at a U.S. consulate. By applying for a waiver here, an applicant will be able to stay with his or her family rather than facing months of separation.
Are waivers easy to win?
No, they are usually very challenging. You have to show that your U.S. citizen husband, wife or parent would suffer extreme hardship if you are denied the waiver. Immigration’s definition of extreme hardship is more “extreme” than how you or I think of extreme hardship. (Immigration typically considers the loneliness of separation of your close family and the economic differences between the U.S. and the developing world as “normal” hardship, not extreme hardship.) Even with a lawyer representing you, it can be very challenging to show extreme hardship and win a waiver.
Who needs a waiver of unlawful presence?
Adult (18 ½ or older) applicants who crossed the border without inspection need a waiver. So do most adults who overstayed by more than six months. (Exceptions to the overstay rule include people married to U.S. citizens who are applying for them, and many people who entered on F-1 student or J-1 exchange visitor visas. Many Canadians are exempt as well.)
What if I need another waiver also, like a waiver for having lied to Immigration or for having committed a crime?
Then you cannot use this program. Only the existing process of going overseas, being denied at the consulate and then applying for waivers overseas is available to you.
So who does this rule help? Is the help immediate?
The most obvious group are people who entered illegally across the border and are married to U.S. citizens. These people will be able to apply for their waivers under the program as soon as the new rules become final. In addition, adult children of U.S. citizens who either overstayed tourist visas or entered the U.S. without inspection will be able to benefit from the program once their cases are eligible to be processed. While marriage cases and applications by U.S. citizens for their children who are 18, 19, or 20 do not have waiting lists, applications for older children are subject to significant waits. This program does not exempt anyone from waiting their turn in the processing queue. So applicants who are over 21 whose parents applied for them at least seven years ago (ten years ago for married, adult children) will likely be able to take advantage of the new program quickly, while others will need to wait to use it.
Will the new rule improve my chances of winning a waiver?
On its face, the rule does not change the standard for deciding waivers. You will still have to show that your citizen spouse or parent would suffer extreme hardship if your waiver application were to be denied.
What if my spouse or parent is a permanent resident, does the new rule help me?
No, it only applies to relatives of U.S. citizens. Your relative might want to consider applying for citizenship, if he or she is eligible.
