Under current law, spouses and children of U.S. citizens who enter the U.S. unlawfully are ineligible to apply for lawful permanent residence inside the United States through a process known as “Adjustment of Status.” Instead, they are required to leave the United States in order to apply for an immigrant visa at the consulate in their home countries. Upon leaving the U.S., these spouses and children often become subject to a three or ten year bar to reentry due to their prior unlawful presence in the U.S. Once outside the U.S., these spouses and children may apply for a waiver of such bars in order to be reunited with their U.S. citizen families. However, this process can take several years.
On Jan. 6, 2012, U.S. Citizenship and Immigration Services (USCIS) posted a Notice of Intent in the Federal Register outlining a proposed procedural change in the adjudication of the I-601, Application for Waiver of Ground of Inadmissibility, in cases involving spouses and/or children of United States citizens facing such bars to reentry. The proposed process would allow these individuals to apply for waivers of inadmissibility prior to departing the U.S. for an interview at a U.S. Embassy or Consulate abroad.
USCIS envisions that by allowing these individuals to apply for waivers in the U.S. and by making a provisional determination of waiver eligibility before the individuals appear for their immigrant visa outside the U.S. it will:
- provide a more predictable and transparent process;
- improve processing times; and,
- minimize the separation of U.S. citizens from their families.
USCIS also believes that the change would streamline the process for handling requests for these waivers, both within USCIS and the U.S. Department of State (DOS). USCIS foresees that this change would serve to encourage those individuals who may be eligible for a waiver of inadmissibility to seek lawful readmission to the United States.
Grounds of inadmissibility: what are they?
Grounds of inadmissibility are statutorily prescribed reasons for which the United States government may deny an alien admission to the United States. The proposed procedural changes to the adjudication of waiver applications would be limited to applications to waive inadmissibility pursuant to sections 212(a)(9)(B)(i)((I) and (II) of the Immigration and Nationality Act which—subject to limited exceptions—provides that:
(I) any person who leaves the United States after having been illegally present in the country for more than 180 days is barred from returning to the United States for a period of three (3) years; and
(II) that any person who leaves the United States after having been illegally present in the country for more than a year is barred from returning to the United States for a period of ten (10) years.
Under current law, certain relatives of citizens and lawful permanent residents of the U.S. can apply for a waiver to allow them to return to their families by showing that their U.S. citizen family member would suffer an extreme hardship if they were unable to return to the United States. However, under current procedures they must first depart the United States to trigger the relevant ground of inadmissibility and apply for the waiver abroad. In most cases, these individuals and their families face lengthy waits of one to several years before they are reunited with their families.
Who would be eligible?
The proposed streamlined process would be limited to spouses and children of U.S. citizens planning to apply for an immigrant visa abroad who would require a waiver due to prior unlawful presence in the United States. However, when speaking of children, since under current law children under the age of 18 do not accrue unlawful presence—and therefore do not require a waiver—the proposed process would only benefit those children of U.S. citizens between 18 and 21 years of age.
USCIS states that it selected immediate relatives of U.S. citizens as the class of aliens to consider for this procedural change based on its policy objective of alleviating the extreme hardship suffered by U.S. citizens. Furthermore, USCIS asserts that its focus on U.S. citizens and their immediate relatives is consistent with the priority Congress has given in the immigration laws to family reunification.
Who would be left out?
It appears that sons or daughters of U.S. citizens over the age of 21 years, as well as spouses, and sons or daughters of lawful permanent residents of the United States will not be eligible for the proposed streamlined process even if they have a visa immediately available. Additionally, individuals who require waivers of inadmissibility for grounds other than prior unlawful presence in the U.S. will not be eligible for the proposed streamlined process and will be required to apply for a waiver abroad under current procedures.
These restrictions are hard to reconcile with Congress’s stated priority, as cited by USCIS, of promoting family reunification. Viewed from the family reunification point of view it is difficult to understand the exclusion of these family members from the proposed streamlined process, particularly in light of the fact that the process will not affect the rules for applying for lawful permanent resident status within the United States, nor the substantive requirements for the grant of a waiver.
How would the proposed process work?
Under the proposed process, eligible applicants would apply for a provisional waiver before leaving the United States for processing of their immigrant visa application at a U.S. embassy or consulate abroad. However, if granted, the provisional waiver would not take effect until the applicant departs from the United States and triggers the covered ground of inadmissibility.
The applicant would then appear for an immigrant visa interview at a U.S. embassy or consulate abroad where a final decision would be made concerning their eligibility. If approved the applicant would be issued a visa for travel back to the United States. If denied the applicant would have to remain outside the U.S. until expiration of their three or ten year bar to reentry.
Would the proposed process make it easier or less risky to apply?
The proposed process could potentially make it easier and faster to apply for waivers and immigrant visas abroad. It could also reduce the risk of harm that many individuals face when they have to go back for a prolonged period of time to a country where conditions are dangerous.
However, the proposed process would not change the requirements for obtaining an immigrant visa abroad or the standards for obtaining a waiver. Nor would it change the requirement that the applicant ultimately depart the United States to have his or her visa application processed at a consulate abroad. Notably, the proposed process would not allow applicants who are not otherwise eligible to apply for Adjustment of Status upon a grant of a provisional waiver; as such a change would require legislation.
Moreover, the provisional waiver covers only grounds of inadmissibility concerning prior unlawful presence. Accordingly, if a U.S. consular officer finds during an immigrant visa interview that the beneficiary of a waiver under the proposed streamlined process is subject to another ground of inadmissibility, the individual would need to file another waiver application with USCIS, presumably with an additional fee.
USCIS also contemplates that applicants under the proposed streamlined process would be scheduled for biometrics collection at a USCIS Application Support Center and, if denied, would be subject to removal (deportation) from the United States. Therefore, the proposed streamlined process is not likely to serve as a way for persons unlawfully present in the United States to seek a waiver without having to depart the United States as they would either depart upon approval of the waiver in order to apply for an immigrant visa, or would be placed in removal proceedings upon denial of their waiver application.
When will this streamlined process take effect?
The process will not be implemented until publication of a final rule by USCIS. USCIS thus warns that no one should file an application based on this proposed change until the final rule is issued and the change becomes effective. Any applications filed prior to the final rule will be rejected and the application package returned to the applicant.
USCIS has stated that in the coming months it will undertake further analysis and begin collaboration with the Department of State to develop the streamlined process in greater detail, leading to the publication of a proposed rule. USCIS will consider the comments received as part of that process before publishing a final rule. In other words, it’s going to be a while.