On Jan. 6, 2012, U.S. Citizenship and Immigration Services (USCIS) posted a notice of intentin the Federal Register outlining its plan to reduce the time that U.S. citizens are separated from their spouses and children under certain circumstances while those family members go through the process of becoming legal immigrants to the United States. Currently, spouses and sons and daughters of U.S. citizens who have accrued a certain period of unlawful presence in the United States, and have to leave the country as part of the legal immigration process, are barred from returning to their families for as long as 3 or 10 years. They can receive a waiver to allow them to return to their families by showing that their U.S. citizen family member would face extreme hardship as a result of the separation. This proposal would streamline the processing of these individuals’ waiver applications based on unlawful presence; USCIS proposes to process their waiver applications in the United States before any American family faces separation. The process would only apply to immigrants who are eligible for a visa.
Under the proposed process, the spouses and children of U.S. citizens who are eligible for a visa to immigrate legally to the United States, but who need a waiver of inadmissibility for unlawful presence in order to obtain that visa expeditiously, would apply for a provisional waiver before leaving the United States to have their immigrant visa application processed at a U.S. embassy or consulate abroad (as they must pursuant to law). The notice limits the streamlined process to those individuals who are inadmissible based solely on having accrued a period of unlawful presence and – pursuant to statutory requirements – who can demonstrate extreme hardship to their U.S. citizen relative. All individuals affected by this streamlined process would need to meet all legal requirements for admission to the United States, including the requirement that they process their visa application at a U.S. consulate abroad.
With the change outlined in the notice, individuals who currently qualify for a waiver of inadmissibility under the existing eligibility standards, and who can demonstrate that separation from their U.S. citizen spouse or parent would cause extreme hardship to that relative, would be allowed to apply for a waiver while still in the U.S.
By allowing these individuals to apply for waivers in the U.S. and making a provisional determination of waiver eligibility before the individuals must depart the country for visa processing, USCIS would provide a more predictable and transparent process and improved processing times, minimizing the separation of U.S. citizens from their families. The change would also streamline the process for both USCIS and the Department of State (DOS) when handling requests for these waivers. As a result, this change would encourage individuals who may be eligible for a waiver of inadmissibility to seek lawful readmission to the United States by limiting the amount of time they would need to spend away from their U.S. citizen spouse or parent.
Following publication of this notice, USCIS will undertake further analysis and collaborate with the Department of State to develop the streamlined