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New Rule Concerning Unlawful Presence Waivers is not Amnesty

Immigrants Beware: New regulation effective Mar 4, 2013 modifies a waiver process. Immigrants should contact a licensed attorney

By M.Guadalupe Tellez, Esq.
Published on LatinoLA: January 25, 2013


New Rule Concerning Unlawful Presence Waivers is not Amnesty


As an attorney who handles immigration cases, I receive dozens of calls from immigrants requesting information about President Obama's "new amnesty program." A lot of misinformation is spreading among the Latino immigrant community about a so-called "amnesty" program that will take effect in March 2013. No such program exists. Congress has yet to pass any legislation concerning comprehensive immigration reform.

Unfortunately, ill-informed immigrants seeking a path to legalization may expose themselves to undue risk. Some may become victims of fraud by unscrupulous "notarios" who promise legalization. Others may unknowingly subject themselves to removal (deportation) proceedings before the Immigration Courts. In order to shed some light on this issue, I will briefly explain what this new regulation is all about.

On January 2, 2013, Secretary of Homeland Security Janet Napolitano announced the posting of a final rule in the Federal Register that reduces the time U.S. citizens are separated from their immediate relatives (spouse, children and parents), who are in the process of obtaining visas to become lawful permanent residents of the United States under certain circumstances.

The final rule establishes a process that allows certain individuals to apply for a" provisional unlawful presence waiver" before they depart the United States to attend immigrant visa interviews in their countries of origin. The process will be effective on March 4, 2013.

Under current law, only certain persons may adjust status to that of a legal permanent resident within the U.S. Spouses, children and parents of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents must leave the U.S. and obtain an immigrant visa abroad. For example, Mexican nationals must travel to Ciudad Juarez; Guatemalans must travel to Guatemala City; and El Salvador nationals must travel to San Salvador.

Immigrants who have accrued "unlawful presence" while in the United States must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the United States after departing to obtain an immigrant visa.

Under the existing waiver process, immediate relatives cannot file a waiver application until after they have appeared for an immigrant visa interview abroad and the Department of State has determined that they are inadmissible. To illustrate, a Mexican national who is the spouse of a U.S. citizen must first attend her interview at Ciudad Juarez in Mexico. During the interview in Ciudad Juarez, the consular officer will inform the immigrant whether she can file her waiver. Once that waiver is filed, that Mexican national must wait in Mexico until her waiver approved. An approval may take anywhere from 3 months to 18 months. During this time, she will be separated from her U.S. spouse as she must await her waiver decision abroad while her husband is living in the U.S.

The new regulation effective March 4, 2013 modifies this waiver process. Under the new regulation, the Mexican national spouse mentioned in my example above may file her waiver in the U.S. before she leaves to Ciudad Juarez for her interview. This way, she may await her approval while in the U.S. with her husband, thereby significantly reducing the time she will spend in Ciudad Juarez.

In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent.

Under the new provisional waiver process, immediate relatives must still depart the United States for the consular immigrant visa process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad.

This new change is simply a change in the process of filing for an unlawful presence waiver. This new process greatly reduces amount of time U.S. citizens are separated from their qualifying immediate relatives and supports family unity.

However, this new regulation is not an amnesty. It is not a new legalization program. Immigrants should contact a licensed attorney before filing any such waiver or beginning any type of immigration paperwork.

About M.Guadalupe Tellez, Esq.:
Yale College, B.A. 1996 / UC Berkeley School of Law J.D. 1999

Attorney Maureen Guadalupe Tellez is licensed to practice law in California, New York, and all U.S. Immigration Courts.
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