FindLaw KnowledgeBasePublished: 2012-03-15
The Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) have proposed revising the process immediate relatives (who are noncitizens) of U.S. citizens use to obtain visas to remain in this country. USCIS defines the “immediate relative” to mean spouse, parent or child (21 years of age or older).
The proposal would permit a provisional waiver of the inadmissibility period that is normally imposed upon noncitizens who are in the U.S. illegally. The waiver would allow, upon a showing of extreme hardship, a noncitizen to return to the U.S. without having to wait the standard inadmissibility period. They would, however, still have to return to their home country to first obtain a consular visa.
Three Years or 10 Years
Under the current rules, an immigrant who has been in the U.S. for more than 180 days illegally is prohibited from reentering the U.S. after they have been “removed” for a period of three years. The longer they have been in the U.S. illegally, the longer the inadmissibility period. If they have been here more than one year, their inadmissibility period becomes 10 years.
The new policy is aimed at easing the hardship for the remaining citizen spouse, who could, for instance, be left raising children alone for up to 10 years.
USCIS plans to limit consideration and granting of the provisional waiver to:
- “aliens who qualify for classification as immediate relatives of U.S. citizens,
- who have a U.S. citizen spouse or parent who would suffer extreme hardship if the waiver were denied, and
- for whom the sole basis for inadmissibility is unlawful presence in the United States of more than 180 days.”
Goal is to Reduce Separation Time
One of the goals of U.S. immigration policy is unification of families. The rule change will foster this objective, but it is important to note the critical factor, “extreme hardship” based on the hardship of of the US citizen, not of the noncitizen. For instance, arguing that the noncitizen spouse would be subject to extreme hardship upon returning to their home country would not provide grounds for granting a provisional wavier.
This provisional waiver is not yet available, as the official rulemaking process must first be completed. As with most immigration matters, an immigration attorney can be helpful in working through the often confusing requirements.