Published: January 12, 2012

It never fails. Whenever a new immigration provision is presented to Congress for consideration, or is proposed by the President or some other official in the Executive Branch, the media takes the ball and runs with it. It’s either presented as something it is not, or simply misunderstood to be something it’s not. Either way, the US audience, ranging from the general American John Q. Public demographic to the vulnerable 12 million undocumented demographic, gets excited, in different ways, and for different reasons. Notably, this provision will impact only limited number of prospective applicants, applicants who are ineligible to “adjust” status/ undergo all permanent residence processing in the U.S. and who are willing to visit a U.S. consular post in their home country for their “green card” interview.

The latest news has to do with an Obama administration initiative for processing “waivers of inadmissibility” and it proposes to streamline processing of certain applicants for permanent residence who under current law, must leave the US for an extended period for their final green card/ interview, and appear before a US consular officer in their home country. Instead of facing a 3 months or so wait to receive a decision on their waiver application while outside the US, the new proposal will allow for a wait as little as a few days outside the US, since the 3 months of processing is now being proposed to take place before the applicant’s departure.

And what is being decided in this period is an “I-601 waiver” application to excuse, or “waive”, the individual’s previous period of unlawful presence in the U.S. and consequent 3 or 10 year bars to reentry, where cases are approved only if the applicant can demonstrate that his denied reentry will pose extreme hardship for his U.S. citizen or permanent resident spouse or parent. Of course, there’s no guarantee all applicants for a waiver will be approved under this proposed program, but this new procedure will no doubt be of great comfort to families by letting them know ahead of time if the main obstacle (3 year bar) to their loved one’s reentry has been removed – and repeat, before the applicant leaves the US for their interview in their home country. Thus, if the applicant’s waiver application is denied, that decision will be known before any trip outside the US takes place. The applicant will then know there is no reason for the applicant to appear for their interview before a US consular officer in their home country, since he will know he will indeed be subject to a bar to reentry that has NOT been waived.

Again, this new provision is only at the proposal stage, and a final, working rule has yet to be implemented. In the meantime, no waiver filings will be decided in the US as proposed above. If implemented though, the rule will not impact applicants currently outside the U.S., who will continue to be subject to ordinary processing procedures now in place. Further, since this processing change is being presented as an act of Executive/Administrative “rulemaking” and not legislation, there is no need for congressional approval. All developments regarding implementation of this provision will continue to be reported on here.

Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois