Serving the Unlawful Presence Bar Inside the United States

 

The U.S. immigration laws punish foreigners who have unlawfully stayed in the country by banning them from applying for a visa or admission for a period of time.  If an individual is present in the U.S. for more than 180 days illegally, the person is not allowed to be admitted for 3 years after her departure or deportation.  For those who have accumulated more than one year of unlawful presence, then for 10 years they will not be readmitted after departure or deportation.  In the past, unless waivers are granted, foreigners subject to these "unlawful presence bars" must wait 3 or 10 years outside the U.S., before they can reapply for admission.  A recent change in immigration policy brings good news to them. 

In June 2022, USCIS issued a policy guidance allowing previously unlawfully present foreigners to serve the 3 or 10 years of non-admission within the U.S.  The change is good news because these individuals no longer have to be separated from their family and friends while waiting.  Before this guidance, there was confusion as to how one may meet the 3 or 10 years requirements.  The new guidance confirms that the required 3-year or 10-year period starts to run after the foreigner's departure from the U.S.  Further, the period continues to run without interruption for 3 or 10 years, regardless of whether the individual has returned to the U.S. or now.

The change is a major shift in USCIS policy, as illustrated by a recent case decision.  In that case, the foreigner was admitted to the United States as a visitor in August 1997, overstayed until March 1999. She then reentered the U.S. again as a visitor in January 2000, and departed again in August 2001.  In June 2008, she entered the U.S. again and has remained since then. She applied for a waiver of her unlawful presence ground of inadmissibility so that she can be admitted as a legal resident, which was denied by a USCIS Director.  On appeal, the AAO reviewed the case in light of the new policy and concluded that a waiver is not needed.  AAO explained that she was subject to the unlawful presence bar based on her previous unlawful presence for more than one year.  However, 10 years have already passed since August 2001, her second departure, and she is no longer inadmissible. As a result, she does not need a waiver.  

Although the new policy allows foreigners to serve the statutory periods in the U.S., an applicant for admission could be subject to other grounds of inadmissibility or other legal bars. For example, if an individual returned to the U.S. after departure without inspection, then she will not be eligible for adjustment of status.  Hence, foreigners should try to return legally. Some applicants such as DACA beneficiaries may be able to return legally to the U.S. by applying for a non-immigrant visa such as F-1 or H-1B with a non-immigrant visa waiver.  Other individuals may have to take other course of actions. One size does not fit all.  It is critical for foreigners to first discuss their options with an experienced attorney before taking actions.  

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Enforcement of F-1 Student Unlawful Presence Memo Blocked by Federal Court

A federal court today blocked the enforcement of the August 9, 2018 memo (and the related May 10, 2018 memo) issued by USCIS, a branch of the Department of Homeland Security.  These memos redefined the way how and when international students start to accrue unlawful presence in the United States.  Accrual of unlawful presence is a very serious violation, which can result in deportation and cancellation of visa status.  The change affected tens of thousands of international students present in the U.S. in F, J, and M visa status.  The Court held that the implementation of these memos must be stopped for now pending a final decision on the merits of the case.  The injunction is a huge relief for foreign students.

Since the implementation of a August 2018 memo that redefined how unlawful presence (illegally remaining in the U.S.) is counted for F, M, and J visa holders, foreign students and universities have been in an uproar. 

The change introduced "backdating", allowing officers to judge when a student had fallen out of status and began counting unlawful presence accrual from there. This is a massive difference from  the previous convention, which was to start counting unlawful presence the day an officer makes the judgement. The retroactive nature of the August 2018 memo makes it particularly controversial. Students can unknowingly lose their status due to technical violations and only realize it when they have accrued months or years of unlawful presence. If enough unlawful presence is accrued, the foreign student can be deported and may face a three or ten-year bar from reentering the country.

A group of universities, teachers, and two students decided to take action. They challenged the August 2018 memo in the United States District Court for the Middle District of North Carolina. Their main argument is that USCIS did not follow proper rule-making procedures, violating the APA (Administrative Procedure Act). The APA requires all rules follow a "notice-and-comment" process. Any rules that do not comply are invalid. USCIS did not publish notice of the proposed change nor the memo proposing the change in the Federal Register. Plaintiffs also argued that the memo's method of calculating unlawful presence conflicted with that of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which is existing law.

The Court granted preliminary injunction of the August 2018 and the preceding May 2018 memo, citing a likelihood of success on the merits listed in the above arguments. The memo's enforcement has been put on hold, nationwide. It means that immigration officers in the U.S. must now apply the old rule in reviewing international students' legal status. The injunction will also likely affect overseas consular officers' decisions in reviewing visa applications, although their decisions are normally not reviewed by federal courts. 

Feb. 5, 2019: Last Date to Fix F-1 Status Violations

Any foreign national who has been unlawfully present in the United States for more than 180 days is banned from returning for three years.  For those who have been unlawfully present for 365 days, they will be barred from returning to the U.S. for ten years.  For foreigners who have been in F, M or J visa status, accrual of unlawful presence (ULP) has become a pressing issue as February 5, 2019 approaches.

As we reported last year, USCIS issued a new policy memo in May 2018 which became effective on August 9, 2018.  The new policy changed the way that foreign students and exchange visitors (F-1, M-1, J-1) become out of legal status.  Previously, foreign students were considered in legal status unless there is a formal decision by the U.S. Government that they've violated their status.  However, after August 9, 2018, foreign students became automatically out of status the day after the occurrence of  any status violation. Examples of violations include failure to take the required number of classes, working without authorization, failing to extend the I-20, failure to depart the U.S. after program completion, illegal CPT employment, taking too many online classes, etc. 

More importantly, status violations from long time ago can cause the student to lose legal status as of August 9, 2018.   It is unclear to what extent DHS will enforce this new policy.  Technically speaking, a student who failed to even report her residential address three years ago could be considered a status violation which made her "fall out" of status on August 9, 2018.  After 180 days - on February 5, 2019 - the student would have accrued sufficient ULP in the United States to make her ineligible to return for three years.  Can the person just stay in the U.S.?  Unfortunately, remaining in the U.S. is also not a viable option for the student. Because of her failure to maintain legal status, it would be difficult for her to change to another non-immigrant status or adjust status to become a permanent resident. 

For persons who have violated their F, M or J status before, they should consult with an experienced immigration attorney immediately.  One possible solution is to leave the U.S. before February 5, 2019 so as to break the 180 days of unlawful presence.  It doesn't mean that they will certainly be able to return to the U.S.; at least they would not be subject to the three-year bar.  It is a complicated issue.  Each person's situation is different and careful analysis is required before making any decision.  

International Students Unlawful Presence Under New Policy

As reported earlier, a new policy on the accrual of unlawful presence for F, J, and M students and exchange visitors has taken effect as of August 9, 2018. Given how serious the consequences of unlawful presence can be, international students should be aware of what is allowed and what isn't.

For many years, foreign students are given "D/S or duration of status" when they are admitted into the  U.S.  This allows them to legally remain in the country for as long as they maintain their status. They were considered in status until an immigration officer makes a formal determination that they violated their student status or an immigration judge issues a deportation order again them.  Hence, it was possible for a student to have violated his or her status for a period of time without "falling out of status" or accruing unlawful presence.  The new policy is to counter this "loophole" under the D/S rule.

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Starting August 9, 2018, foreign students would start accruing unlawful status the day after they violate their nonimmigrant status.  A formal finding by USCIS officers is not required.  Examples of violation include unauthorized employment and failure to maintain full-time enrollment.  Further,  foreign students may also accrue unlawful presence if they remain in the U.S. after completion of a study program plus any authorized practical training and grace periods.  If there is a fixed expiration date in the student's I-94 admission record, unlawful presence also starts to accrue the day after the expiration date.

Should a student be concerned about unlawful presence?  Absolutely - accrual of unlawful presence can bar an international student from returning to the U.S. for three or ten years depending on the duration of unlawful presence.

Out-of-status international students may request for reinstatement of their nonimmigrant status.  Under the revised new policy, the accumulation of unlawful presence is tolled after a reinstatement application is timely filed.  Any accrued unlawful presence is cleared if reinstatement is approved.  Unlawful presence would continue to accrue if the request is denied.

On the other hand, appealing or motioning to reopen denied applications will not halt the accrual of unlawful presence.  Only if the appeal or motion is granted will any accumulated unlawful presence be cleared. 

Various conditions can cause a student to violate their status and therefore become unlawfully present. Unauthorized employment is a common one. Others include not maintaining a full course load and failing to attend or pass classes. Minor violations such as taking one credit short of a full-time course load may be overlooked on a case-by-case basis and won't necessarily mean loss of status. Schools also have their own policies students need to follow. Generally, students should consult with their Designated School Official (DSO) before making any changes. 

F-2, J-2 and M-2 dependents are also affected by this policy change. When the principal F-1, J-1 or M-1 visa holder loses his/her status, so does their dependent. Dependents can also lose their status on account of their own violations. 

F, J, M Students and Unlawful Presence

If you are an F, J and M foreign student studying in the U.S., please pay close attention!

USCIS has implemented a new policy regarding how a F, J, or M foreign student may accrue unlawful presence in the U.S. Specifically, the changes are to how unlawful presence is calculated and its related consequences. Unlawful presence (ULP) has special significance under the law as accrual of ULP may bar a person from reentering the US for long periods of time.  Simply put, ULP happens when a foreigner has failed to maintain her legal nonimmigrant status and is not otherwise authorized to stay in the U.S. The changes will take place on August 9th, 2018. The USCIS policy memo announcing this also includes specific rules for before August 9th.

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Before August 9th, F, J, and M status individuals violating certain conditions will have already begun their unlawful presence. One condition is having their I-94 expire. Another condition is having an immigration judge or the Board of Immigration Appeals exclude, deport, or remove them. The last condition is if DHS denies the individual's request for any immigration benefit upon finding that they violated conditions on their status. The day after any of these conditions are met is when the individual's unlawful presence begins.

After August 9th two more conditions will trigger the start of unlawful presence. One is when the program or study that allowed the individual to lawfully reside in the States ends. Such conditions include OPT and grace periods. The second condition is when the person stops the study or program or is no longer eligible to continue because of unauthorized activity. Again, the day after any of these happen is when unlawful presence begins.

What if one accrues unlawful presence? The most notable consequences are the infamous three-year (for ULP of 180 days or longer) and ten-year bar (for ULP of 365 days or longer) of inadmissibility after the violator's departure from the U.S. It means they will not be allowed to apply for a U.S. visa, admission, or adjustment of status if the bars are triggered. The only way around this is to qualify for relief, typically in the form of a waiver. Dependents are also similarly affected by the new policy.  Additionally, dependents may also fall out of status on account of their own violations.

Prior to these changes, immigration has applied the "duration of status" (D/S) standard for many years. D/S is marked on student I-94 and I-20s. It means that students are allowed to keep their nonimmigrant status for so long as they continue to pursue their studies and comply with all visa conditions in the U.S.  Only after an immigration officer makes an explicit finding of status violation will the student's nonimmigrant status end.  Under the new policy, specific findings of status violation will no longer be required. One thing is unclear: what happens if the study program ends for reasons unrelated to the student.  Would she still accrue ULP? 

Analysis of the Proposed Rule on Unlawful Presence Provisional Waiver

On April 2, 2012, the Department of Homeland Security (DHS) published a proposed rule to change the current application process for unlawful presence waivers in connection with an immediate relative immigrant petition.   An immediate relative petition is one filed by a U.S. citizen on behalf of his parent, spouse or children under the age of 21.  A waiver is required if the foreign relative departs the U.S. after having been unlawfully present in the U.S. for more than 180 days.  Without an approved waiver, the foreign relative will be barred from returning for 3 years (or 10 years for unlawful presence of 365 days or longer).

The current application process requires these foreign relatives of U.S. citizens to apply for a waiver of inadmissibility at an overseas U.S. consulate office.   Further, the processing times for these waivers are usually very long, thus forcing U.S. citizens to be separated from their close family members for extensive periods of time. The new proposal attempts to address these issues by allowing foreign nationals who are already in the U.S. to file a provisional waiver application with the USCIS without leaving the United States.  Although the proposed rule is not yet been made final, it is important to understand exactly what it entails.

Who are covered by the provisional waiver proposal?

Only immediate relatives of U.S. citizens are covered.  Immediate relatives are parents, spouses and children who are under the age 21.

What grounds of inadmissibility are covered?    

The proposal only covers the unlawful presence waivers of the 3-year bar or 10-year-bar.  A person subject to other grounds of inadmissibility would not be eligible to file a provisional waiver under the proposal.

What are grounds of inadmissibility?

They are legal bars which make intending immigrants ineligible to apply for permanent resident status.  Examples include prior unlawful presence, criminal convictions and contagious deceases.

How does the proposed rule change the application and processing of unlawful presence waivers?

The current process requires an applicant first depart the U.S., thus triggering the unlawful presence bar, and then apply for a waiver at a U.S. consulate office in overseas countries.  The proposal allows the foreigner to first request for provisional waivers from the USCIS prior to their departure for overseas consular visa processing.  If approved, the applicant will be granted a provisional waiver which would become fully effective upon her departure from the United States and upon approval of an immigrant visa by U.S. consular officer. 

When can an applicant apply for a provisional wavier?

An applicant may only apply for a provisional waiver if he is the beneficiary of an approved Form I-130 relative visa petition or Form I-360 special immigrant petition (Amerasian, Widow, etc.)  They must also have paid the visa fees to the Department of State. 

Who are not covered by the proposal?

Individuals who are outside the United States, who are in deportation proceedings, who have a final order of removal, who are subject to other grounds of inadmissibility, who already have an immigrant visa interview scheduled, who have a pending adjustment of status application, who do not have an approved I-130 or I-360 petition, or who are under the age of 17 are not eligible for provisional waivers.

If my removal proceedings were administratively closed, would I still be eligible to file a provisional waiver?

If your case was administratively closed but was subsequently reopened for the issuance of a final voluntary departure order, then you would still be eligible.

How does an applicant qualify for a provisional waiver?

In addition to having an approved visa petition, an applicant must demonstrate that her U.S. citizen spouse or parent will suffer extreme hardship if the waiver is not granted.  To prove that one’s citizen spouse or parent will suffer extreme hardship, documentary evidence and witness testimonies may be used.  Factors such as health conditions, financial conditions, social problems, etc., are considered by the USCIS.

Will hardship to other relatives be considered?

No, the proposal only covers hardship to one’s USC spouse or parent.  The DHS so far has decided that it will not extend the provisional waiver’s coverage to other relatives including USC children or LPR spouses or parents.  Waivers based on hardship to other relatives must continue to be filed in overseas U.S. consulate offices.

If my immigrant visa petition is not filed by my USC spouse or parent, can I still use their hardship to support the waiver?

Yes, the petitioner and the qualifying relative can be different persons.

What rights would a pending or approved provisional unlawful presence waiver confer upon the applicant?

A pending or approved provisional unlawful presence waiver does not confer any rights to the applicant until an immigrant visa is issued by a U.S. consulate officer after an interview.  It does not give the right for the applicant to apply for advance parole travel document, to enter the U.S., to work legally in the U.S., or to apply for other immigration benefits.

How does one lose the rights to an approved provisional waiver?

Generally, after one is granted a provisional waiver, it is valid indefinitely.  However, if the applicant becomes a conditional legal resident through the waiver (e.g., based on a short-term marriage to a USC), but subsequently his conditional status is terminated, then the waiver will no longer be valid.  If the person later on successfully reverses the termination of his conditional status in removal proceedings, then the provisional will become valid again.  Similarly, a fiancé visa holder’s approved provisional waiver is only effective upon her marriage to the USC petitioner within 90 days of her arrival in the U.S.

When will the proposal rule become effective?

There is no effective date set for the new unlawful presence provisional waiver rule.  Before it becomes effective, a final rule must be published by the government first. 

If the provisional waiver is not approved, will the applicant be placed in removal proceedings?

If the provisional waiver is granted, the applicant will not be placed in removal proceedings unless the government “discovers acts, omissions, or post-approval activity” that would meet the criteria to start removal proceedings.  The proposal is silent about treatment of unapproved waiver applications, but it is unlikely to be a case-by-case decision.

Would there be any changes to the proposal to make its terms more favorable?

The DHS has received many comments and feedbacks from the public including the American Immigration Lawyers Association (AILA) to further expand the coverage of the provisional waiver.  For examples, adding other relatives for consideration of hardship such as a LPR spouse and parent; preference relatives (e.g., spouses and children of LPRs) should be allowed to file provisional waivers; individuals in removal proceedings should be allowed to file; individuals subject to other grounds of inadmissibility should be allowed to file; etc.  It is possible that DHS may incorporate some of these suggestions in the final rule.  

Breaking News: DHS to offer Deferred Action to Dreamers (High School Grads)

(Source: AILA National)

DHS will formally announce this morning that it will offer deferred action to DREAMers.
Preliminary information indicates that eligible applicants must:

• Be 15-30 years old, and have entered before age 16
• Have been present in the U.S. for 5 years as of June 15, 2012
• Have maintained continuous residence
• Have not been convicted of one serious crime or multiple minor crimes
• Be currently enrolled in high school, graduated or have a GED, or have enlisted in the military

The deferred action offer will be available to those in deportation proceedings as well as to those who apply affirmatively.
Two-year employment authorization document (EAD) will be offfered with no limit of renewals.

The White House is expected to make a formal announcement this afternoon at1:15 EST. 

BIA held Advance Parole Absence does not trigger Unlawful Presence Bar

In a recent BIA decision, the Board surprisingly held that a foreigner who left the United States after securing an “advance parole” travel document from the DHS is not considered a departure for the purposes of determining whether the person is subject to the 10-year unlawful presence bar.  The Board held that the foreigner is therefore allowed to apply for adjustment of status to become permanent resident under section 245(i) of the Immigration and Nationality Act. 

In Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), the respondents, husband and wife, legally entered the U.S. in 1999 and 2000 respectively.  After overstaying their nonimmigrant visas, they were present in the U.S. without legal status for more than five years.  Subsequently, the male respondent sought to apply for legal status based on an approved employment based immigrant visa petition filed on his behalf by an employer pursuant to section 245(i) of the Act.  However, the couple made a trip to India to attend totheir aging parents after securing advance parole travel documents from the DHS.  Upon their return to the United States with advance parole, DHS argued that they were barred from applying for adjustment of status because they were inadmissible to reenter the United States for ten years pursuant to section 212(a)(9)(B)(i)(II) of the Act.  This section of the law bars foreigners from admission for ten years if they departed the United States after having been unlawfully present for more than one year.

The BIA previously held in Matter of Lemus that section 245(i) does not overcome the unlawful presence bars, absent a waiver.  In Lemus, the respondent did not have an advance parole document when he left the United States.  Here, the BIA carved out an exception for the respondents in Matter of Arrabally and Yerrabelly, explaining that their absence from the U.S. after a grant of advance parole did not constitute a departure that would trigger the unlawful presence bars.  The BIA noted the advance parole (1) was approved in advance by the United States Government on the basis of a merits application; (2) presupposed the alien’s authorized return thereafter, and (3) was requested solely for the purpose of preserving the alien’s eligibility for adjustment of status.  The BIA seemed to be saying that the respondents merely took a brief trip outside the United States with no intention to depart.

Hence, the BIA concluded that the respondents are not inadmissible for adjustment of status pursuant to section 212(a)(9)(B)(i)(II).  Therefore, they are eligible to apply for adjustment of status based on section 245(i).  The decision no doubt is good news for applicants who must travel for emergency reasons.  However, this decision could still be challenged by the government in federal court.  For example, as the dissenting opinion noted, a recent Third Circuit decision also involved advance parole travel but reached a different conclusion.  Therefore, it is very important for applicants to fully understand the legal ramifications before travelling on advance parole.  

BIA held Section 245(i) Unavailable to Reentrants with Prior Violations

Litigation surrounding section 245(i) of the Immigration and Nationality Act often involves complex factual and legal issues. Matter of Miguel LEMUS-Losa, 25 I&N Dec. 734 (BIA 2012), a recent BIA decision on section 245(i) is such an example.  In LEMUX, the BIA held that adjustment of status under section 245(i) is unavailable to an alien who is subject to the 3-year and 10-year bars under section 212(a)(9)(B)(i)(II) of the Act, without a waiver.

Section 245(i) was enacted in 1994 by Congress to allow certain applicants for adjustment of status in the U.S. to be eligible to receive their permanent resident status even though they entered the U.S. without having been formally inspected by an immigration officer first.  However, Section 301 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 imposed two additional grounds of inadmissibility for foreigners who have prior violations of immigration laws.  First, section 212(a)(9)(B)(i)(II) of the Act imposes the 3-year and 10-year bars for those who have been present in the U.S. unlawfully.   Second, section 212(a)(9)(C)(i)(I) punishes those individuals who reentered or attempted to reenter the U.S. after prior violations. 

In this case, the foreigner reentered the U.S. without authorization after having been present in the U.S. for more than one year.  He then applied for adjustment of status.  Both the immigration court and the BIA denied his request based on the 10-year-bar under 212(a)(9)(B)(II) of the Act. The case was appealed to the 7th Circuit, which disagreed and remanded the case back to the BIA for another decision.  The 7^th Circuit’s decision is based on BIA’s failure to examine the differences between section 212(a)(9)(B)(i)(II) and section 212(a)(9)(C)(i)(I) of the Act.  Section 212(a)(9)(C)(i)(I) makes it inadmissible for foreigners who had accrued one year of unlawful presence or who had been previously deported from the U.S., and then reentered or attempted to reenter the U.S. again.  The 7^th Circuit reasoned that these reentrants’ behavior are more serious than the first class of individuals who are merely “seeking admission” after accruing unlawful presence.

On remand, the BIA analyzed the statutes again and came to the same conclusion that section (a)(9)(B)(i)(II) or the 10-year-bar still bars the applicant from adjustment in spite of section 245(i).  According to the BIA, the meaning of “seeking admission” is a lot broader than the general meaning of the term and covers many different types of situations.  The BIA concludes that although section (a)(9)(B)(i)(II) and section (a)(9)(C)(i)(I) are different, neither section covers mere“entry without inspection” or other conduct that section 245(i) was designed to forgive.  Ultimately, the BIA decided to remand the case to the immigration judge to examine whether section (a)(9)(C)(i)(I) also applies here as the applicant apparently reentered the U.S. after prior violations.  The final chapter of this case has yet to be written. 

New hope for foreigners who are subject to the three/ten year bar

A new proposal by the Department of Homeland Security (DHS) brings new hope to foreigners who are subject to the three and ten year bars because of their unlawful presence in the United States. Rather than leaving the United States to apply for a waiver at an overseas consulate office, these foreigners would be allowed to have their waiver pre-adjudicated by the USCIS in the United States according to the proposal. If their waiver applications are approved, they would still be required to depart the U.S. to apply for immigrant visas to return to the United States.

The 3/10 Year Bar
Section 212(a)(9) of the Immigration and Nationality Act provides that any noncitizen who after having been unlawfully present in the United States for 180-364 days and then voluntarily departs the country before they are placed in removal proceedings is not allowed to return to the United States for three (3) years. Similarly, a noncitizen who has been unlawfully present in the United States for one year or longer and then departs or is deported is not allowed to return to the United States for ten (10) years. These are known as the 3-year-bar and the 10-year-bar. There are some exceptions for asylum applicants, battered spouses, certain family unity beneficiaries and minor children. Furthermore, the unlawful period can be tolled for good cause and non-frivolous requests for extensions. Otherwise, if these noncitizens wish to return to the United States, they must first obtain a waiver from the U.S. government. The Department of Homeland Security has discretion to waive the 3/10-year-bars if the noncitizen can show that his U.S. citizen or legal resident spouse or parent will suffer extreme hardship if he is not allowed to return to the U.S.

Catch 22
For many foreigners who have accrued unlawful presence in the United States but are otherwise eligible for an immigrant visa, they are caught in a “Catch 22” situation. On the one hand, they are not allowed to apply for a green card within the United States because of their unlawful status. On the other, they do not want to leave the country for fear that they would not be able to return to the U.S. because of the 3/10-year-bars. Even if they are eligible to apply for a waiver based on hardship of their spouses and/or parents, they are afraid that the waiver might not be approved. The current policy is that the wavier must be filed with an overseas DHS office. In short, they are stuck between two equally undesirable options.

The New Proposal
The DHS recently announced that it intends to publish in the Federal Register a proposal to revise the procedures for determining the unlawful presence (family unity) waivers for spouses and children of U.S. citizens. The new proposal creates an “in-country processing” mechanism for noncitizens who are spouses and children of U.S. citizens to file the unlawful presence waiver. A noncitizen who has accrued unlawful presence would be able to apply for the waiver from within the United States. This “in-country processing” proposal would permit USCIS to grant a provisional waiver. Applicants would still be required to depart from the U.S. before receiving a final approval on their application. By pre-processing the family unity waiver, the applicant’s waiting time will be shortened. Currently applicants face a long wait when seeking a waiver outside the U.S. The goal of this new proposal is to encourage more noncitizens to come forward to file their immigrant and waiver petitions in the United States.

This process, however, does not change the legal requirements for immigrant visa petition or the family unity waiver application. The “law” regarding immigrant visas and waiver adjudication has not been changed. The change is only procedural in nature. Further, it is important to note that the proposal will not cover spouses and children of legal permanent residents. They must still follow the existing procedure and apply for a waiver at an overseas U.S. consulate office. Finally, applicants must not rely on this proposal yet until it is finalized. Thus far, the DHS has only published a statement of intent to propose the change. It is expected that the change will not be finalized until the end of 2012. Interested foreigners may start gathering documentary evidence to establish their eligibility for a waiver but should not act hastily before they have discussed their case with a qualified immigration attorney.