Finally, the DHS has published its final rule allowing for stateside waivers of the 3/10 unlawful presence bars for certain immediate relatives. The proposed rule was published about 6 months ago, and now that the final rule has come out, it will be effective in 60 days – on March 4, 2013. Those who have entered the country without authorization are not permitted to obtain their residence (green card) inside the US without first leaving for visa issuance abroad. If they have been in the US for more than a year without authorization, they are subject to the 10-year bar, which means they can not come back for ten years without the kind of waiver this rule covers.
The rule allows for some people to seek waivers inside the US – cutting the time they are separated from their family in the US from 9-12 months to more likely a few weeks to a couple of months. In the absence of comprehensive immigration reform, this was seen as something the administration could do without needing to go to the recently deceased do-nothing 112th Congress. We have several clients who have approved I-130 petitions and who were simply waiting for this rule to become effective. Now that it has, their cases can move forward.
The rule works like this:
- Anyone who is over 17 years old, who is the immediate relative of US citizen (spouse of a US citizen, parent of a US citizen who is over 21 years old, or child under 21 and unmarried, of a US citizen);
- Who has an approved I-130 immigrant visa petition (or in some circumstances – such as widows and those who have been the victim of abuse – an I-360);
- Who have paid their consular visa processing fees through the National Visa Center, but who do NOT have a visa interview scheduled at the consulate yet;
- and who is not currently in removal (deportation) proceedings, unless they have been administratively closed or terminated,
- may file an I-601A form with the proper fees and evidence to allow for US CIS to determine whether their qualifying relatives (Spouse and parents) will suffer extreme and unusual hardship if the waiver is not granted.
Its important to remember that those with criminal inadmissibility grounds, those who are subject to the permanent bar, and anyone subject to other grounds of inadmissibility will not be eligible for stateside waiver processing. Also, if you have already had a visa interview scheduled at the consulate and just continued it for this process, you will need to terminate it and file a new I-130, as the stateside waiver process is tied to the individual I-130 petition.
With the implementation of this rule, we can now file the marriage petition with US CIS, and within 90-120 days have an an interview to establish the validity of the marriage. Once the visa petition is approved a few weeks later, the approved petition is sent to the National Visa Center for processing. A couple weeks thereafter, once the consular processing fees have been paid, we can file the waiver request with US CIS. During that process they will also be fingerprinted as part of the background/criminal checks. Once that has been approved 6-9 months later (most likely), we can continue consular visa processing through the National Visa Center – to get a visa interview scheduled at the US consulate in their home country. This stage will likely take a minimum of 2 months to get the interview scheduled. Only then would they leave the US for the consulate – where they will also need to complete a medical examination and interview to determine if they are subject to any other bars, and if not, they will get their visa stamped into their passport and be permitted to enter the US as a Lawful Permanent Resident, getting their “Green Card” several weeks after arriving. The entire process would be roughly 18 months, with them being out of the country only for the last few weeks (most likely). Prior to this rule, our clients were gone for more than 9 months, and sometimes over a year waiting for waiver approval and visa issuance.