DHS' Provisional Waiver Plan Significant for Those Eligible to Adjust Status

January 11, 2012


       On January 6, 2012, the Department of Homeland Security (DHS) announced a plan to dramatically change the waiver application process in a manner that will provide significant benefit to certain individuals that are ineligible to adjust status in the United States.  The announcement is a spectacular way to start the new year as the DHS already has the legal authority to implement the plan and does not need Congress to effectuate the change.

        The DHS provisional waiver plan is designed to streamline the waiver application process so that the separation of family members is minimized.  The plan will greatly benefit immediate relatives who are in the US, but are not eligible for adjustment of status.  Individuals in this situation are primarily those who entered the US as a crewman, in transit, fiancé who did not marry the petitioning fiancé, without inspection, or someone who can no longer prove how they lawfully entered the US.

        Immediate relatives who are not eligible for adjustment of status may obtain permanent residency only by departing the US and processing the immigrant visa application at a US Embassy overseas.  The problem, however, is that most individuals who have been unlawfully present in the US become subject to a 3 or 10 year bar once they depart the US.  Individuals who depart the US after having been unlawfully present in the US for more than180 days are subject to a 3-year bar.  Individuals who depart the US after having been unlawfully present in the US for more than 1 year are subject to a 10-year bar.

        The only way for an individual to obtain an immigrant visa and return to the US before the 3 or 10 years elapses is by being granted a waiver of inadmissibility for the unlawful presence.  To qualify for an unlawful presence waiver, an applicant must prove that he/she has a US citizen or permanent resident spouse or parent (not child) that would suffer extreme hardship if the applicant were not allowed to return to the US before the applicable 3 or 10 years.

        The current process for an unlawful presence waiver, however, is extremely difficult and risky.  The current process requires an individual to depart the US before applying for a waiver, and may take several months to years before receiving a decision.  This dilemma has caused individuals to remain stuck in an unfixable problem since they cannot legalize their status within the US, and are terrified of departing the US due to the extended separation from their family and the uncertainty of knowing whether the unlawful presence waiver will be granted.

        The DHS plan will greatly resolve this dilemma, as individuals would be able to apply for the unlawful presence waiver before departing the US.  The individual would travel overseas to the US Embassy only after receiving an approval of a provisional waiver from the DHS.  The length of time the individual would be overseas for processing of the immigrant visa would therefore be shortened to conceivably just a few days to a few weeks.

        The DHS provisional waiver plan will be available only to those who are applying for an immigrant visa under the Immediate Relative category.  This category includes those who are petitioned by a US citizen spouse or US citizen child, as well as a US citizen parent petitioning an unmarried child under age 21.  Individuals applying for an immigrant visa based on another family-based category or an employment-based sponsorship will be required to apply for the unlawful presence waiver under the current process only.  Additionally, the provisional waiver program will be available only to those who are able to demonstrate that they have a US citizen spouse or parent who would suffer extreme hardship.  It will not be available to those relying on a permanent resident spouse or parent suffering extreme hardship.

        Finally, the provisional waiver plan will be available only for the unlawful presence waiver.  It will not be available to individuals who are inadmissible due to another reason, such as fraud, criminal conviction, or prior deportation order.

        In this election year, speculation is that it will be very difficult for Congress to pass any new laws that would make life easier on the immigrant community.  The DHS is therefore continuing their trend of doing what it can to fulfill its priorities of family reunification and border security without the need for any Congressional act or approval.

        Although it is uncertain when the provisional waiver program will actually be implemented, it should not be too long as the DHS already has the full authority to implement it.  Individuals must seize the opportunity once it is available as it is highly questionable that Congress would pass any changes allowing them to simply remain in the US.   Given the complexities of the waiver process, it is vital that individuals seek fully knowledgeable legal counsel.  Hopefully, the DHS will continue to favorably exercise its authority throughout the rest of the year so that individuals who are such valuable assets to the US may finally find peace.