Joel entered the United States n 2007 with a crewmembers’ (C1/D) visa. He had a contract to work for a cruise ship. He was employed for one year but during one of their trips in Florida, he decided to jump ship and illegally stay in the United States. Joel met Rowena and they got married after a few months. Rowena became a naturalized U.S. citizen and filed a petition for Joel.
The U.S. Citizenship and Immigration Services denied Joel’s application for immigrant visa on the ground that individuals with crewmembers’ visas are not allowed to receive their green card through adjustment of status. He was told that he had to get his visa outside the Untied States or specifically at the U.S. Embassy in Manila.
Joel was hesitant to depart for the Philippines for fear that he will not be issued a U.S. visa since he overstayed and incurred unlawful presence in the United States for more than five years. He has been a “TNT” or undocumented for one year and was told that if he departs, the 3-10 year bars will apply to him. This means that he will not be able to return until after ten years even if his spouse petitions him. As a result of this bar, Joel opted to stay undocumented and risk deportation/removal. He now has two U.S. citizen children and is working without authorization as a parking attendant. Rowena, on the other hand, has been unemployed for quite some time due to disability. Joel heard about the “stateside” waiver and is wondering if he may now finally legalize his stay. Is he eligible for the provisional waiver of unlawful presence? How will he go about applying for this waiver?
Beginning March 4, 2013 immediate relatives of United States citizens who overstayed their authorized stay in the US may be allowed to legalize their status. After the U.S. Citizenship and Immigration Service first announced its “stateside” waiver policy in April 2012, it took ten months before a final rule was released on January 3, 2013.
INDIVIDUALS WHO WILL BENEFIT FROM THE STATESIDE WAIVER
The immigration policy on Provisional Unlawful Presence Waiver, which is most often referred to as the “stateside” waiver, was announced last year to benefit undocumented immigrants who are immediate relatives of U.S. citizens and who are in the United States in unlawful status. It is to be emphasized that not all undocumented relatives of United States citizens will benefit from this new policy. It is limited only to parents, spouses and minor children of U.S. citizens. Lawful permanent residents or green card holders may not confer benefits of this law to their spouses, minor children or parents.
THE TRADITIONAL WAIVER
Prior to the released of this provisional waiver policy, undocumented relatives of U.S. citizens who are not eligible to get their green cards in the United States must leave the US to get their visas through consular processing with a U.S. Embassy abroad. The consular officer will then require a traditional waiver of the unlawful presence only after the interview.
If the relative leaves the US to get the visa, he will be denied because of his accumulated unlawful presence in the United States. The basis for the denial is the 3-10 year bar imposed by legislation in 1997. This situation created a catch 22. Within the United States, this individual is denied the adjustment of status and outside the United States, he will be denied the immigrant visa through consular processing because of the 3-10 year bars. If the individual decides to get the visa outside the United States, he will have to take the chance of applying for the waiver of his unlawful presence while outside the United States and wait until it is approved which may take several months or years. In the meantime, the individual and his family members are separated while the application is pending.
To remedy this situation, the individual who incurs unlawful presence will be permitted to file a provisional waiver of the “unlawful presence” while the individual is still in the United States.
THE PROVISIONAL WAIVER
The release of the final rules on provisional waiver was anticipated for almost a year. The length of time it took for the rules to become final meanT that the U.S. Department of Homeland Security took serious steps to consider how limited or extensive its impact will be on those who are affected by this new policy. An examination of the rules reveal that this provisional waiver has very limited applicability. Aside from having to prove “extreme hardship”, among the limits set are as follows:(1) it waives only unlawful presence and not other grounds of inadmissibility such as fraud or misrepresentation; (2) applies only to spouse, parents and minor children of immediate relatives; (3) does not apply to those who were previously interviewed for immigrant visas at the U.S. Embassy; (4) does not give provisional immigration benefit such as employment authorization or advance parole and (5) no appeal from a denial of the waiver.
The U.S. Citizenship and Immigration Service clearly is taking an incremental approach to providing relief to undocumented immigrants. This provisional waiver policy is for a recognizable group of “immediate” relatives. It is going to be implemented in the spirit of family unity but with its limited applicability, we cannot raise our hopes too high. A comprehensive fix to the broken immigration system is still the only solution to curb illegal immigration.
(Tancinco may be reached at law@tancinco.com or a 887 7177 or 721 1963)
