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United States Department of Homeland Security Allows Waiver for Spouses and Parents Here Without Authorization

Since 2011 the Department of Homeland Security has said it would allow spouses and parents of US citizens who have been in the US without authorization to apply for a waiver allowing them to become permanent residents.  Families in this situation have been waiting for nearly two years for the details to be published in a final regulation.  A draft was issued for comments back in April of 2012 and just this week the Department of Homeland Security announced the publication of the final rule for these families.

This is good news for the many US citizen spouses and children who would otherwise be separated for months or even years as their foreign-born loved ones applied for the unlawful presence waiver at a US consulate outside the US.  Those who have been in the United States without authorization for long periods of time are barred from returning to the United States once they leave.  The bar can be for three years or ten years depending on the length of unauthorized stay.  Prior to this rule, those seeking a waiver of this bar had to leave the US (thus invoking the bar to returning) and apply for a waiver at a US consulate.  Under the new rule, they can apply for a provisional waiver while still here in the United States, allowing those affected to stay with their US citizen family members for a longer period of time (and avoid leaving their families at all if it appears they will not obtain the waiver).  Those with approved provisional waivers will still need to leave the US and obtain a immigrant visa at a consulate overseas, but they will no longer have to wait outside the US for the long process of determining whether they qualify for the unlawful presence waiver.

Applicants still have to prove extreme hardship to a US citizen spouse or child, which can be a difficult burden to meet.  Thus, the waiver is not granted in all cases.  Potential applicants should review their qualifications with a professional prior to applying for the new provisional waiver.

The new rule allows applicants to being apply for provisional waivers on March 4, 2013.  Only new applicants will qualify.  This effort, though long in the making, is part of the Obama Administration’s attempts to keep families with immigrants together.