Cite as “AILA InfoNet Doc. No. 13010246 (posted Jan. 2, 2013)”
Washington, DC – The American Immigration Lawyers Association (AILA) commends the Department of Homeland Security (DHS) for issuing a final rule that will allow certain family members of U.S. citizens who are physically present in the United States to remain in the country while applying for the waiver they need to become permanent residents.
The process change permits certain immediate family members of U.S. citizens (spouses, parents of citizens at least 21 years of age, and minor children) to apply for a provisional waiver of unlawful presence while remaining in the U.S., thereby cutting down on the lengthy waits-sometimes a year or more-during which these citizens are separated from their families during the process. To obtain the waiver, applicants would still need to meet the strict letter of the law which requires them to prove that family separation will cause their American citizen spouse or parent extreme hardship.
If the waiver is granted, the foreign national must still leave the U.S. and apply for and receive an immigrant visa abroad before returning to the U.S. However, the length of time that American families are forced to remain separated should be lessened considerably.
The final rule has been expanded to include those eligible family members who have had removal proceedings administratively closed and whose cases have not been recalendared at the time of filing the provisional waiver application. However, anyone with a final order of removal, or who has been previously removed, will not be eligible for the new waiver process.
“The new rule is a smart way to remove one of the biggest roadblocks for families who already qualify for immigration benefits, but who wouldn’t put their loved ones at risk under the current system. We don’t know exact numbers, but this simple processing change will have a huge impact on U.S. families caught in the current immigration mess. Stateside waiver processing doesn’t grant a legal status or protect someone from immigration enforcement, but it’s a good solution for many who were looking for a safe way out of the immigration labyrinth. The new rule isn’t perfect, and there are questions we hope to have answered before the rule goes into effect on March 4, but the agency has left the door open to improving the process to cover other types of cases if this initial rollout is successful,” said Laura Lichter, AILA President.
The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.