Dear Atty. Lou,
I heard about a proposed provisional waiver and would like to know if this will apply to my husband. He came here in the United States without inspection (jumped ship) in 2001. We got married here. We were never married in the Philippines because I was petitioned single but we were gifted with 3 kids all born in the Philippines. They all came with me as an immigrant.
I filed a petition for my husband (I-130) and this petition was approved in 2006. During that time I was still a permanent resident. I just got my citizenship last 2008. My question is this- if the proposed provisional waiver will approved, will my husband be qualified to apply even if I was not a citizen yet when his petition got approved? If so, are there any things to be considered or to be done while waiting for this waiver to get publish and approved?
Thank you very much Atty. Lou. Any answer given is highly appreciated.
Sandra
Dear Sandra,
The January 6, 2012 announcement of the Department of Homeland Security is a Notice of Intent to accept and adjudicate “waiver” applications within the United States for those who have incurred unlawful presence. It applies to immediate relatives of U.S. citizens with approved petitions.
Generally, immediate relatives, referring to spouses, minor children and parents of U.S. citizens, may file for adjustment of status based on an approved petition. Unfortunately, there are certain immediate relatives who cannot adjust and these individuals include those who entered without inspection at the time of their last entry and had incurred unlawful presence. Those who are not allowed to adjust the status in the United States are asked to leave the country to get their visa at the U.S. consular post abroad. If they have been out of status for more than 6 months or 1 year, they will be subjected to the 3-10 year bars. This means that they will not be able to return to the country for 3-10 years depending on the number of months they spent in unlawful status.
Recognizing the problem, the Department of Homeland Security announced its proposal for individuals who may be barred from re-entering. The new proposal will allow those subject to the bars to file their waiver of unlawful presence within the United States. The waiver must be accompanied by proof indicating extreme hardship to U.S. citizen spouse or parent. Only after getting a favorable decision on the waiver will the individual need to depart to get their visa at the U.S. Embassy in Manila.
Applications filed at the consular offices of the United States embassy is usually protracted especially for those that do not have U.S.C.I.S offices in their post. In some embassies where they already have U.S.C.I.S officers adjudicating, some jurisdictions will still take several months, or even years, to decide on these waiver cases. The length of time it takes for the waiver to be processed is the same length of time the individual applicant is separated from his family waiting anxiously for the decision. To address the problem, the proposed policy now allows filing of the waiver first within the United before departing to get the visa abroad. This is now referred to as the “stateside waiver.”
In your case husband’s case Sandra, since he is already in possession of an approved petition, he may avail of the benefits of this new regulation. It will not matter whether you were a green card holder at the time you initially filed the petition. Filing the waiver within the United States is just the first step. To include in this waiver are substantial supporting documents to show extreme hardship to you as the U.S. citizen spouse. If the waiver of unlawful presence is approved, your husband can depart to obtain the visa at the U.S. embassy in Manila.
It is important to note the U.S. consular officer is not prevented from denying the visa based on other grounds of visa refusal such as criminal convictions and prior deportations. The reason is that the policy will only waive one of the many grounds of denial for issuance of visa. It only waives “unlawful presence”. A careful assessment of your husband’s case by a legal professional must be made before his departure for purposes of obtaining his visa abroad to avoid complications and unexpected consequence.
I hope this information is helpful.
Atty. Lou
(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 1 888 930 0808; email at law@tancinco.com or check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to law@tancinco.com)
