Proposed New Immigration Rule Would Ease Waiting Time for the Spouse of U.S. Citizens Requiring a Waiver

January 6, 2012

Yesterday the Department of Homeland Security announced a process change that would allow the spouses of U.S. citizens who are in the U.S. but need a waiver to obtain a green card, apply for that waiver while still within the U.S. While most family-based green card applicants do not need a waiver to obtain a green card, this proposed change will have a major impact on the lives of those applicants who do need to obtain a waiver.

While the foreign national spouses and children of U.S. citizens living in the U.S. can apply for a green card, those who entered the U.S. illegally or entered legally yet overstayed their period of authorized stay, must leave the U.S. and apply for their green card at the U.S. Consulate abroad. For those who have accrued a year of unlawful presence in the U.S, once they leave the U.S. they trigger a ten year bar from the U.S. They can apply for a waiver to allow them to return to their families before ten years by showing that their U.S. spouse or parent would face extreme hardship as a result of the separation. But under current procedures, waiver applicants must first leave the U.S., be interviewed at the U.S. Consulate and be told to apply for a waiver, and then must submit the waiver. This can result in family members being stuck outside the U.S. for months, and even years while they wait for their U.S. Consulate appointments and for their waiver to be approved - if it is.

The proposed new rule would allow U.S. citizen spouse waiver applicants to apply for a "provisional waiver" while they are still in the U.S. Instead of leaving the U.S. and first applying for a green card, and first waiting for a waiver application to be adjudicated, this would allow spouses to wait in the U.S. while their waiver application is adjudicated, and then leave the U.S. to apply for the green card at the U.S. Consulate. While this proposed rule would minimize the time that the spouses and children of U.S. citizens are apart, one of the real, but unstated benefits is that it allows spouses to "test" whether they can overcome the ten-year bar before they actually trigger the bar by leaving the U.S.

As an immigration lawyer, I know that one of the first questions from a client who would want to apply for a "provisional waiver" would be: "What happens to me if my provisional waiver is denied? Will I be put into deportation proceedings since now I have alerted the USCIS to the fact that I am here illegally, and I have provided my home and work address? " Unfortunately there is no answer to this question at this time. However, the recent shift in immigration policy towards a greater exercise of prosecutorial discretion might have the benign result of allowing immigrants with no criminal records and U.S. citizen spouses, whose provisional waiver is denied, to remain in the U.S. For now we do not know the answer, but as the proposed rule goes through the comment and rulemaking process hopefully this question will be addressed.