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USCIS changes its procedures for applying for unlawful presence waivers


By Max Nuyen

There is a certain misconception that if a foreigner marries a U.S. citizen, they will automatically be entitled to lawful permanent residence. This is only true in certain situations. That is, the foreign spouse must have come to this country on a valid visa. If this is the case, a U.S. citizen’s spouse can sponsor their foreign spouse and be able to receive approval for lawful permanent residence status relatively quickly (usually within six months).

Unlawful presence and the waiver
If the foreign spouse came illegally, meaning he/she was not inspected by customs when they entered the country, things are much more difficult -really difficult, actually. In these instances, the concept of “unlawful presence” comes into play. When a person enters the country without inspection, they begin to accrue unlawful presence. There are dire consequences to that presence. A period of unlawful presence greater than three months will trigger a three-year bar, where that person would not be eligible to receive immigration benefits for at least three years.  If the person leaves the country, they will not be permitted to return until the purgatory period has elapsed. If the period of unlawful presence is greater than six months, a ten-year bar applies. This is known as the “3/10 year bar.”

The unlawful presence bar is one of the most crushing problems an immigrant can face. Even if they are married to a U.S. citizen, they are not eligible to receive lawful permanent resident status, regardless of the duration of the marriage, how long they have lived in the U.S., or even if the marriage has produced children.

A small glimmer of hope?
There is a small loophole for those who are brave enough to crawl through it. It is possible to apply for a waiver of the 3/10 year bar. If the U.S. citizen spouse can establish that they would suffer extreme hardship, the 3/10 bar may be lifted. The problem is that in order to apply for this loophole, the foreign spouse must leave the country. If they leave the country, there is no guarantee the waiver will be granted, and the spouse would be allowed to return to the U.S. The processing time for the waiver is uncertain as well. It could take six, twelve, or even eighteen months for the waiver to be processed and approved. In the meantime, the family is separated because one of the spouses is out of the country.

The burdens associated with applying for a waiver is one of the reasons why few people who qualify for it are willing to apply. No one wants to be separated from their family for an indefinite period of time. For those reasons, it is difficult for an immigration lawyer to recommend going the waiver route.    

The good news is that U.S. Citizenship and Immigration Services (USCIS) has recently amended its regulations and changed the waiver application process. Now, the foreign spouse who is subject to a 3/10 year bar can apply for a provisional waiver while still in the U.S. This means they can remain with their family while the waiver application is pending.

To be granted lawful permanent residence, the foreign spouse must still leave the country and apply at their home country’s consular office. However, the big difference is that with the new provisional waiver approval process, they will know beforehand that their visa has been approved. Not only has the separation issue been addressed, but the uncertainty of the waiver application process is dealt with as well. A foreign spouse no longer has to be concerned about whether they will be approved for a waiver before leaving the country because they will know beforehand that the application was already pre-approved.

There still is a small period of separation. But it is now only weeks rather than months or years. If things go according to plan, it should be a simple matter for the foreign spouse to go to the consular office in their home country to pick up an approved immigration visa.
Is this the perfect solution? No. However, it is the best solution under the circumstances. Unless Congress does away with the 3/10 year bar (which is unlikely), the waiver application process for those who have accrued unlawful presence will be necessary. Nonetheless, the new waiver application process is less burdensome and onerous than it used to be.

Does it make sense to apply for a waiver?
In the past, one would never recommend somebody currently in the U.S. leave the country to apply for a waiver. Today, there is no trouble recommending that course of action to a person who qualifies to apply for a waiver. For the time being, it is the best course of action for obtaining lawful permanent resident status for the spouse of a U.S. citizen.

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