New Proposed Waiver Process

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.

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