By Ramon Trujillo
Earlier this month, United States Citizenship and Immigration Services (“USCIS”) announced firm plans for the long awaited stateside waiver program. The program had initially been announced in January 2012, with an expected start time of July 2012. After some delays and modifications to the program, USCIS announced that it will begin to allow for the stateside waiver process for certain individuals beginning March 4, 2013.
Currently, a relative of a United States Citizen who is in the United States illegally, but has a visa available at the consulate of their native country, would have to leave the United States to their native country in order to obtain their Visa. However, once they stepped foot outside of the United States a three or ten year bar would kick in due to the alien’s illegal presence. While this bar did not automatically prevent the alien from coming back to the United States, an earlier return to the US required a waiver application to forgive illegal presence. The alien seeking the waiver would have to apply for the waiver at their consulate. For example, a native of Mexico would apply for the illegal presence waiver at the consulate in Ciudad Juarez, Mexico. The process could take weeks, months, and in some instances a lot longer until the alien learned if their waiver was approved.
This process, unfortunately, kept families apart for an indefinite amount of time while the alien awaited decision on the waiver abroad. If granted, the alien could return; if denied, the alien would be subject to the 3 or 10 year ban.
The new process, beginning March 4, 2013, allows for certain relatives of American citizens who need a waiver of unlawful presence before being eligible for a green card to apply for that waiver in the United States. The applicant would receive a decision on their case before leaving the United States to finish the process at the consulate in their native country.
A few things to note about this program are that only those who are “immediate relatives” of United States citizens may apply (Parent, spouse and children). In addition, if an alien is seeking a waiver for any crime, then the alien will be ineligible for the stateside waiver process. Another important thing to note is that if approved, the waiver is only provisional, but this does not guarantee that the waiver will be approved at the consulate if circumstances change. Also, if you already have a consular interview date scheduled, you are ineligible to apply for the stateside waiver program.
One common misconception that aliens have had regarding the stateside waiver issues is the thought that they would not have to return to the consulate of their native country. But, this is not true. The provisional waiver will only give the alien an idea of whether their waiver is approved, but the alien still needs to return to their native country and finish the process off at their consulate.
While this announcement is very exciting for countless relatives of United States Citizens and the waiver process has changed in terms of where an eligible person may apply, applying for this waiver remains a very rigorous and challenging process. It is highly recommended that if you are seeking to apply for this waiver, that you seek out the assistance of experienced attorneys, such as Gupta & Trujillo.