There has been a lot of talk the past few days about USCIS's proposal
to change their process for handling I-601 hardship waivers. As background
information, currently unless you entered the U.S. legally or are grandfathered
under the 245i provision, you are not eligible to adjust status (get your
green card without leaving the United States) even if you are married
to a U.S. citizen. Instead, your spouse must file an I-130 and once that
is approved, you return to your home country to process through the consulate.
Unfortunately, if you have been in the U.S. without legal status for over
six months or over one year, you will be told that you are not eligible
for a visa for 3 or 10 years unless you are granted a waiver. At that
point, you can submit an application for a waiver and must show that requiring
you to wait 3 or 10 years outside of the United States would cause extreme
hardship to your U.S. citizen or LPR parent or spouse. While the waiver
application is being processed, you must wait outside of the United States.
If you waiver request is denied, there is no appeal and you must wait
outside the United States for the required period of time.
The proposed new procedure would allow immediate relatives of U.S. citizens
who require an I-601 waiver due to unlawful presence, to file the application
directly with USCIS from within the United States. If USCIS provisionally
grants the waiver, you would then travel to your home country to interview
at the consulate and could expect to return to the United States in a
few days. If USCIS denies the waiver, you would likely be referred to
immigration court. This is not necessarily a bad thing. Rather, it may
open additional options for obtaining a green card.
Once you are in removal proceedings you may be eligible to apply for cancellation
of removal. This requires that you have been in the U.S. at least 10 years
(before the notice to appear in immigration court was issued), have good
moral character, not have certain criminal convictions, and that your
removal would result in exceptional and unusual hardship for your U.S.
citizen or LPR parents, spouseOR CHILDREN. Unlike the I-601 waiver, cancellation of removal takes into account the
hardship to your qualifying children as well. For many families, that
is an easier showing than just hardship to a spouse. If the judge grants
cancellation of removal, you would become a permanent resident.
The new waiver process has the potential to help many family members achieve
legal status without risking a lengthy separation. No one knows exactly
when USCIS will begin accepting waiver applications under the new procedure,
but it will hopefully occur in 2012.
WHAT THE NEW PROCEDURE DOES NOT DO -- It does not alleviate the need for you to consular process if you are
not eligible for adjustment of status. It also does not change the standard
for showing the requisite hardship.
If you have questions about how this new process may benefit you or your
family member, please call Kelli Y Allen Immigration Law at 704-944-3570
to schedule a complimentary telephone or in-person consultation.