The New “Hardship” Filing Rule in Immigration Law

Earlier in January, Secretary of Homeland Security Janet Napolitano announced that on 4 March 2013, USCIS‘s new family unity waiver process will go into effect. The new process will decrease the amount of time US citizens are apart from their immediate relatives — spouse, children and parents — who are in the process of acquiring visas for lawful permanent residency in the US. Particular individuals can fill out a form, called a provisional unlawful presence waiver, before leaving the US and interviewing in their home country.

Final Rule

“This final rule facilitates the legal immigration process and reduces the amount of time that US citizens are separated from their immediate relatives who are in the process of obtaining an immigrant visa,” said Secretary Napolitano.

Current Law

Current law is much different. According to current law, a US citizen’s immediate relatives, who cannot adjust their status to become US lawful permanent residents, must depart the US and acquire an immigrant visa in their country of origin. Those who have unlawfully been in the US for more than six months must obtain a waiver that overlooks their unlawful status and overstay before the can return to the US after going to their home country to appear at  US Embassy or Consulate to be approved for an immigrant visa.  This has  meant that if the waiver was denied by the Consulate abroad, the relative was not allowed to re-enter the United States to be re-united with their family.  A great many people were therefore understandably reluctant to avail themselves of this benefit without a decent chance of a favorable outcome.

Qualifying for a Waiver

In order to qualify for a provisional unlawful presence waiver, the applicant must be an immediate relative of a US citizen, inadmissible only on account of unlawful presence and show that a rejected waiver will end in “hardship” for the applicant’s US citizen relative.  The grounds of waiver remain the same.  The wait time is reduced because the waiver is adjudicated by USICS in the United States and therefore the wait time outside the US is reduced.

The New Process

The new process will have a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver. Individuals who apply under the new waiver must inform the DOS’s National Visa Center before filing.

The Takeaway

The new waiver process will allow eligible applicants to remain in the US while anticipating the outcome of their application. No more waiting in Ciudad Juarez, where local dangers await the unwary; where being found inadmissible means that families have to make the choice to leave the US, and cannot re-unite with a spouse or parent.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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