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On January 6, the Obama administration announced a groundbreaking proposal in the Federal Register to allow immigrants to apply for an unlawful presence provisional waiver in the US before going abroad to apply for an immigrant visa. The proposed rule will have a significant positive impact on the lives of thousands of immigrants and the US economy. The rule’s focus is on family unification of US citizens and their immediate family members. The Administration recognized that current immigration policies and procedures unnecessarily disrupt these families’ lives.

Immigration Attorney Robert Kravitz of Law Offices of Kravitz & Guerra, Miami explains the proposal ameliorates the unduly harsh emotional and financial disruption caused by current immigration procedures to American families.

Under current immigration law, an immigrant who has accrued unlawful status in the United States is generally ineligible to obtain a green card domestically. To obtain lawful status, the immigrant must depart the United States and apply for a visa at a US embassy or consulate in his home country. If this immigrant’s unlawful presence in the United States has been greater than 180 days, his departure triggers a three-year-bar from returning to the United States. If the unlawful presence is greater than one year prior to the departure, the immigrant triggers a 10-year-bar from returning to the United States. Immigration law does allow certain immigrants to obtain a waiver of this bar if they can demonstrate extreme hardship to a qualifying relative in the United States who is either a US citizen or lawful permanent resident. Only an immigrant with either US citizen or permanent resident parents or spouse are eligible to apply for this waiver.

Under the current immigration procedure, the immigrant must depart the United States, thus triggering either the 3 or 10 year bar. He must then apply for and be denied the visa by the US Consulate because of the bar. Next he must apply for a waiver of the bar before the USCIS before finally re-applying for the visa at the US Consulate with an approved waiver. This process often takes several months to several years. In the meantime, the family in the United States is separated from the loved one who is stuck overseas.

The US family has to endure emotional anguish for the entire separation. In addition, dual income families are typically reduced to a single income. What exacerbates matters is that the US spouse must not only support a US household, but must also send money overseas to support the immigrant spouse. This is because in the vast majority of cases, the immigrant spouse is stuck waiting in a country that is dangerous and has no employment opportunities. In the harshest of cases, where the immigrant spouse was the sole breadwinner for the family, the US family is left without any means of financial support. This is an enormous financial drain on the US economy when multiplied across the thousands of families subjected to the current immigration process.

Robert Kravitz believes the Administration’s proposed rule is a significant step in the right direction to ameliorates the emotional and financial trauma to American families. Under the proposal, the undocumented spouses and children of US citizens will be able to apply for a provisional waiver while in the United States. They must still demonstrate extreme hardship to a qualifying relative, but, would not have to wait separated from loved ones for extended periods of time outside of the United States. There would be little or no disruption to their lives.

In addition, Attorney Robert Kravitz said, “Applying for a waiver domestically will allow for uniformity in the decision making process. The current process often results in significantly different outcomes in waiver adjudications by the different USCIS offices throughout the world. This is because the foreign field offices apply differing standards. For example, a waiver case that has a strong chance of being approved in Ciudad Juárez, would likely be denied in another jurisdiction. The Administration envisions significantly faster processing of these provisional waivers by keeping the process centrally located in the United States.”

Eligibility will be limited only to the spouses, children, or parents of US citizens who are immigrating as an immediate relative. The provisional waiver will also be limited to those only requiring a waiver for the 3 or 10 year bar. Once a provisional waiver is granted, the immigrant is then free to travel to the home country to apply before the US Consulate for immigrant visa and return to the US. Attorney Robert Kravitz explains that this process can usually be completed within a matter of weeks resulting in a prompt return to the US.

The proposed rule is a smart way to efficiently and fairly administer the waiver program while remaining faithful to Congress’ priority that immigration law focus on family unification of US citizens. Important financial resources will remain in the United States and families will be spared unnecessary hardship. (Law Office of Kravitz & Guerra)