by Attorneys Robert L. Reeves and Anthony J. Favero

The Obama administration has started the process of obtaining an over stay waiver in the United States by enacting new Federal Regulations for aliens who are immediate family members of American citizens who do not qualify for a green card in the U.S. Under these proposed regulations, an estimated one million individuals will be eligible to benefit from significant changes in the processing of unlawful presence waivers at U.S.

Embassy’s outside the United States. Under current law immigrants who entered United States without inspection, immigrants who lost proof that they were lawfully inspected and admitted into the United States, immigrants who entered the United States as crewmen, and immigrants who entered the United States as fiancé(e)s but did not marry their U.S. citizen petitioner, are not eligible to apply for permanent residence (green card) from within the U.S.

They must first return to their home country and be processed through the U.S. Embassy. However, when they leave the U.S. they automatically trigger a bar of up to 10 years for overstaying. They must then apply for a waiver of that bar at the U.S. Embassy. This holds true even if they are married to a U.S. citizen. Consequently, many immigrants in the aforementioned situations faced an incredibly difficult decision – remain in the United States illegally or leave the United States to apply for their green card and a waiver of their unlawful presence at the U.S. Embassy abroad with the possibility that the waiver could be denied and remain stuck in their home country for the next 10 years. Applying for an unlawful presence waiver from outside the U.S. is often a lengthy process.

Thus, many immigrants who choose to leave the country to apply for their immigrant visa (green card) at the U.S. Embassy will remain separated from their spouses and children in the U.S. for several months to a year even if the waiver is granted. The Obama administration’s new regulations attempt to alleviate this burden by allowing prospective immigrants to apply for an unlawful presence waiver from within the United States, thereby greatly alleviating the hardship and financial burden on these families that protracted separation causes.

Under the proposed language of the recently published regulations, only spouses and children of U.S. citizens are eligible for the provisional waiver program. In addition, the applicant must be inadmissible to the United States only because of unlawful presence, have an approved immigrant visa petition from his or her U.S. citizen family member, be physically present in the U.S. at the time the application is filed, and have biometrics taken in the U.S. in order to qualify for the program.

Unfortunately, immigrants who are in removal proceedings, have outstanding deportation orders, or are not physically in the United States are not eligible for the provisional waiver. Also, the filing or the approval of a provisional unlawful presence waiver will not confer any legal status on the applicant in the United States. Approval of the waiver does not protect against additional unlawful presence, authorize entry into the United States without a visa or other entry document, provide employment authorization, or protect the applicant from being placed into removal proceedings. It also does not change the legal standard for ultimately being granted the waiver – the applicant must still demonstrate extreme hardship to his or her U.S. citizen spouse or parents.

Ultimately, these new regulations will allow approximately one million individuals to come forward and apply for legal status without leaving their families in the United States for any lengthy period of time. If you, a family member, or a loved-one is currently out of legal status in the United States, the new provisional waiver program may provide a path to legal status without significant separation from family members. If you believe you may qualify for the new provisional waiver program, we encourage you to contact an experienced immigration attorney who can evaluate your case.

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