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New Immigration Waivers Shorten Separation for Families

As an immigration attorney and an observer of immigration policy, I am pleased to announce that the federal government has modified an onerous rule that has kept apart U.S. citizens from their spouses or parents for years at a time. At the beginning of the year, Secretary of Homeland Security Janet Napolitano announced that undocumented residents who were in the process of obtaining a green card, no longer must exit the country for long periods of time. This new policy would allow applicants to apply and remain within the U.S. throughout the majority of the process and exit the country for shorter periods for their consular interviews. The policy goes into effect on March 4, 2013.

Prior to the policy change, immigrants who were married to U.S. citizens or had children born in the country had to return to their country of origin in order to apply for an immigration visa and seek a waiver if their original entry was undocumented. This process often potentially took years and kept many undocumented aliens from pursuing legal residency or citizenship.

The new policy not only allows immigrants to remain in the United States during most of the application process, it also shortens the separation period to only a few weeks. Applicants still need to return to their home country to attend immigrant visa interviews, but the time of separation required abroad is considerable shorter than prior to the policy change.

If the visa applicant has resided in the United States for longer than six months, they must also apply to the U.S. Citizenship and Immigration Services (USCIS) within the Department of Homeland Security for an immigration waiver. Current U.S. law prohibits undocumented aliens who have lived in the country for more than six months from receiving consideration for visas, but the new process allows some applicants to overcome this legal obstacle.

Applicants for a provisional unlawful presence waiver must have an immediate relative, like a spouse, child or parent that is a U.S. citizen. There must be no other legal hindrances and they must show that a separation from the American relative would produce extreme hardship upon them. Applicants must use the Application for a Provisional Unlawful Presence Waiver, Form I-601A, which will become available in March.

Illegal immigrants pursuing a green card must file Form I-601A prior to leaving the country and notify the Department of State’s National Visa Center that they have applied for a provisional waiver. This ensures that they may re-enter the country expeditiously after the conclusion of their visa interview.

Alejandro Mayorkas, the Director of the USCIS, lauded the government’s move, saying that it will lead to an increase in the number of green card applications. This could affect tens of thousands of families with a member who is not a U.S. citizen or legal resident.

Not all of the details about this program are available at this time, but as an immigration lawyer, I will be eager to learn what caveats may prevent some applicants from receiving a waiver.

If you or a member of your family is not a legal resident and would like to learn more about the waiver application process, please contact my office to set up a private consultation. You may reach me at (512) 215-5225.

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