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New Rule

On March 4, 2013, the U.S. Citizenship and Immigration Services issued a rule that allows certain relatives of U.S. citizens more time to remain in the United States while their application for permanent residence is pending. This rule primarily applies to applicants who must process their application for permanent residence abroad, and who must obtain a special waiver for having lived in the United States for more than one year without permission.

This rule does not change who is eligible for such a waiver. Nor does it change the fact that the applicant must still leave the United States for his final interview. This is not a change in the law, only a change in procedure.

Specifically, although U.S. citizens may sponsor their spouses, parents and minor children for permanent resident status, if that relative entered the United States without inspection, they must leave the country for an interview on their application for residence. Applicants who have spent one year or more in the United States without permission (beginning on April 1, 1997), are subject to a 10 year bar to reentering the United States upon their departure.

The immigration law provides for a waiver of the 10 years if the applicant can show that his absence from the United States will cause extreme hardship to a U.S. citizen or permanent resident spouse or parent. Prior to the new rule, an applicant could not even file his waiver until after his interview abroad. As of March 4, 2013, however, certain applicants became eligible to submit their waiver prior to departure. This new procedure not only notifies the applicant whether their waiver is approved PRIOR to their departure, but also allows them to wait in the United States while their waiver is pending. Waivers filed outside the United States after interview typically take a minimum of 6 – 12 months.

But not everyone is eligible for the new procedure. Most importantly, only individuals who are being petitioned by a U.S. citizen spouse, parent or child AND who are showing hardship to a U.S. citizen spouse or parent qualify. In other words, if your petitioning relative is a permanent resident or you can only show hardship to a permanent resident, you do not qualify. Individuals who do not have a U.S. citizen or lawful permanent resident spouse or parent (regardless of who submitted the petition) do not qualify for a waiver at all.

The new rule also limits these waivers to individuals who only need a waiver for their unlawful presence. Individuals who may have certain criminal convictions or have committed fraud or misrepresentation do not qualify. Recently, U.S. Citizenship & Immigration Services has taken a unexpectedly strict interpretation of past criminal activity, so it is a good idea to consult with an attorney experienced in immigration law to make sure you qualify.

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