Proposed rule on waiver may allow immediate relatives of citizens to apply for green card at the U.S. Consulate

Proposed rule on waiver may allow immediate relatives of citizens to apply for green card at the U.S. Consulate

The Obama administration announced that it will propose a rulemaking to change the procedure in applying for waiver of unlawful presence.  The proposed rule will allow an alien to file an I-601 waiver in the U.S. and wait for approval before departing the U.S. to process the green card at the U.S. consulate.  Under the current law an alien who needs a waiver for unlawful presence will have to depart the U.S. and apply in his home country.  The present procedure is risky because (1) there is no assurance that the waiver application will be approved (2) If the waiver is denied the alien is barred from entering the U.S. for 3 to 10 years (3) the approval process takes time and it could take years while the alien is separated from his family in the U.S.

Question:    Who will benefit from the proposed rule?

Answer:    The immediate relatives of U.S. citizens (spouse, parent and children) who have an approved visa petition and will need a waiver of unlawful presence will benefit from the proposed rule.  Qualifying relatives must be U.S. citizen.  Lawful permanent resident relatives do not qualify under the proposal.  In addition, the alien has to prove that the qualifying relatives will suffer extreme hardship if the waiver is not approved.  The following aliens will benefit under the proposal:

  1. Aliens who entered the U.S. without inspection (EWI) and have no Sec. 245(i) eligibility.  To be eligible under Sec. 245(i) alien must have an immigrant visa petition or labor certification filed before April 30, 2001.
  2. Aliens who entered as a crewman (C or D visa) who have no Sec. 245(i) eligibility.
  3. Aliens who entered as Fiancée (K-1) who did not adjust status based on the petition by the U.S. citizen who petitioned him or her as a Fiancée.

Question:    Who do not need a waiver of unlawful presence?

Answer:    Aliens who are immediate relatives of U.S. citizen (spouse and parent) who entered the U.S. with a valid U.S. visa such as visitor’s visa, student visa, and H-1B visa who have an approved family petition do not need a waiver even if they overstayed their visa for more than one year.

Question:    How long will it take for the proposal to be implemented?

Answer:    It will take some time but we are expecting it to happen by the end of 2012.  In the meantime it is best to prepare before this will be implemented.

Note:        This is not a legal advice.

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