ImmigrationTALK – Commentary on Proposal for Stateside Processing of Waivers

Jan 22, 2012 News

By: Attorney Gail S. Seeram

On January 6, 2012, the Department of Homeland Security (DHS) announced that a new regulation would be drafted and hopefully published which would allow waivers relating to unlawful presence to be filed stateside or in the U.S.
With this new process, which is not law yet, once the waiver is approved in the U.S., then individuals would be required to leave the U.S. and pick up their immigrant visas from the U.S. Embassy abroad and return to the U.S.
As an immigration attorney for 12 years, I commend DHS for proposing this initiative, but it may be GOOD and at the same time BAD for immigrants.
GOOD – This proposal would allow individuals who have been in the U.S. illegally and therefore subject to the three-year or 10-year ban if they leave the U.S. to file a waiver in the U.S. showing “extreme hardship”.  The current process for individuals who are in the U.S. illegally and not eligible to apply for a “green card” or residency in the U.S. is for them to apply at the U.S. Embassy in their native country.
However, the hesitation for many immigrants in leaving the U.S. for processing at the Embassy abroad is that when they leave the U.S., they are then subject to a three-3 or 10-year ban from returning to the U.S. based on the time they spent illegally in the U.S.
This proposal would only apply to waivers for unlawful presence and would not include waivers for any other grounds of inadmissibility.  The GOOD is that it allows the illegal immigrant to be in the U.S. with his/her family while a decision is being made on the waiver.
However, if the waiver is approved then the illegal immigrant leaves the U.S., picks up his or her immigrant visa from the Embassy abroad and re-enters the U.S. with the approved waiver
(no longer subject to the three- or 10-year ban).
BAD – The potential pitfall in this proposal is what may happen to waivers filed in the U.S. that are denied.  Currently, when a petition or waiver is denied, DHS places the person into removal or deportation proceedings.  So, the BAD aspect of this proposal is illegal immigrants with denied waivers may be placed into removal/deportation proceedings.
Also, when the illegal immigrant travels abroad with the approved waiver, he may have other unanticipated issues at the U.S. Embassy abroad that may require a different waiver be filed at the Embassy.  If the Embassy requires another waiver and it is denied then the illegal immigrant is left stuck in his native country.
Remember, the proposal only covers unlawful presence waivers and does not include other waivers for crimes, fraud, misrepresentation, etc.  So, another BAD aspect of this proposal is that the Embassy abroad may create another roadblock to prevent the illegal immigrant entry into the U.S.
The details for this proposal are still being drafted and readers should wait for the final regulation to be published before seeking advice from an immigration attorney.  Note: you should consult an immigration attorney before leaving the U.S. for processing abroad as you may be subject to a ban from re-entering the U.S.
If you have any questions or comments, please email: [email protected].