For those individuals who are not eligible to adjust their status in the United States and require a waiver to return, there have been new developments that in some instances will limit the length of time individual will be separated from their family and employment in the U.S.
On March 4, 2013, the government began permitting certain undocumented relatives of American citizens to apply for unlawful presence waivers from within the United States, instead of forcing them to return home to wait out the lengthy process.
The New Rule
Under current law, many immigrants who enter the country illegally or overstay their visas cannot apply for permanent residence (a “green card”) in the U.S., and instead must apply for their permanent residency abroad. However, if you are illegally in the United States for a certain period of time, in many cases, this can result in a bar to returning for ten years. In order to return, you would have to be granted a waiver of this bar.
Prior to the change in policy, individuals would have to leave the United States and wait outside for many months — sometimes years — waiting for a decision on their waiver. Scarier still was that you could not guarantee that the waiver would be granted. Under the new provisional waivers, an individual will know before they leave the U.S. whether the waiver is granted, and the wait outside will not be months, but hopefully weeks if not days. The individual can then process their lawful permanent residence at the U.S. consulate in their home country and return legally as a lawful permanent resident of the United States.
Who Is Eligible Under the Provisional Waiver?
Applicants who are immediate relatives of a US citizen (spouses, parents and children over 21) are eligible to apply. The applicant must be physically present in the United States, and not already have a scheduled interview at a U.S. consulate abroad. However, in order to be granted the waiver, you must demonstrate that your spouse or parent will suffer an extreme hardship if the waiver is not granted. Unfortunately, individuals whose only immediate relative is a U.S. citizen child over the age of 21 do not qualify for the provisional waiver, as they cannot establish hardship on a qualifying relative.
Only those individuals whose sole immigration violation is unlawful entry are going to be eligible for the provisional waiver. Those who have criminal violations or other immigration problems, removal orders, reentry after deportation will not be eligible.