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Groundbreaking Proposed Rule To Benefit Certain Immediate Relatives of U.S. Citizens

Earlier today, the The Department of Homeland Security announced a Proposed Rule that many families in the U.S. have long been awaiting.  It is not 245(i), but it is one step closer toward the promotion of family unity in U.S. immigration law – and a way of changing regulations without having to butt heads with a resistant legislature.  Currently, an “immediate relative,” in other words, a spouse of a U.S. citizen, a parent of a U.S. citizen 21 years old or older, or the unmarried child of a U.S. citizen under age 21, present in the United States can apply for a green card only if he/she entered on a visa.

However, an immediate relative who entered illegally cannot apply without going through consular processing.  That’s where the trap ensues: most adults who entered illegally will be subject to a ten-year bar when they try to come back to the U.S. because they accumulated “unlawful presence.”  A I-601 waiver is available for people who have a U.S. citizen or Legal Permanent Resident spouse who will suffer “extreme hardship” if they are not granted an exception.  These waivers are processed by the foreign consulates.  At best, they result in long wait times for applicants.  At worst, they are denied – and because of the uncertainty of the process abroad, immigration lawyers routinely advise their clients not to leave the U.S.

The Proposed Rule will change this process to allow immediate family members to apply for a provisional waiver inside the U.S.  In addition to the three groups listed above, an immediate category may also include certain widow(er)s of U.S. citizens and their children.  If granted the waiver, they can then travel to their home countries for the consular visa interview and will then probably be granted a permanent waiver to enter the U.S.  Theoretically, the process to return to the U.S. should only take several weeks, but it is unknown if this time goal will be achieved in practice.

However, the provisional waiver will only consider extreme hardship to U.S. citizen spouses and parents, not Legal Permanent Residents.  Children, as before, are not qualifying relatives for the I-601 waiver.  Additionally, the people applying for the waivers need to hire an experienced immigration attorney, because if they are inadmissible because of another reason – such as certain disqualifying criminal convictions – they could be found inadmissible while they are abroad, and become trapped outside the U.S. this way.  Unfortunately, people in the immigrant preference categories for immigrant visas will still be caught in the same Catch-22 as before.

Many immigrants who entered without inspection have been waiting for another 245(i), a law that was passed for beneficiaries of all categories of family-based immigrant petitions who were physically present in the U.S. on December 21, 2000 and whose petitions were filed before April 30, 2001.  These people were able to eventually apply for their green card, still subject to their corresponding wait times, if they paid a $1,000 penalty in addition to the regular fees for adjustment of status.  While it is nowhere near as expansive, the Proposed Rule avoids the difficulty of passing such a law because it does not require legislative enactment.

The Proposed Rule will be published on January 9, 2012, but it is will not go into effect unless it becomes a Final Rule.  Once it is published, it will be opened to public comment.  No one should be filing for provisional waivers at this time, since the proposal is still in process and the process itself is neither in place nor guaranteed to happen.  If the Rule becomes final, potential immigrants should remain cautious and make sure they obtain expert advice before filing for a waiver, to ensure they are otherwise admissible and informed about the process.  Sometimes, when it comes to announcements about policy changes, there is a lot of gossip floating around, and some is speculative or even incorrect.  There are also unscrupulous “notarios” and even a few disreputable attorneys who take advantage of the new situation to misinform immigrants about the law.

Overall, we view the Proposed Rule as a very positive move toward what should be the overarching purpose of immigration law: family reunification.  This is a change that will not only benefit immigrants who qualify under the immediate family category, but countless U.S. citizen family members who deserve to have their parents, spouses and children by their side – something that many of us take for granted on a daily basis.

Keep tuned for additional developments.  If the Rule becomes final, I hope to touch on those of you who would qualify under the Proposed Rule who currently are, or have been, in removal proceedings.

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