Spouses, parents and minor children of U.S. citizens are considered “immediate relatives” under the immigration laws. As such, they are eligible to process their immigrant visa without having to wait in a very long line and, in some cases, do not even have to leave the United States to process their application for permanent residence. Specifically, immediate relatives who enter the United States with inspection may process their application for permanent residence in the United States, even if they overstayed their authorized period in the United States.
The same does not apply, however, to immediate relatives who enter the United States without permission. Those applicants must process their application for permanent residence (or immigrant visa) abroad. The only exception to this rule is for individuals who are the beneficiary of a petition filed on their behalf (or as a dependent on that petition), that was filed on or before April 30, 2001. In those cases, applicants may be eligible to apply in the United States by paying an additional $1,000.00 penalty.
The importance of being able to process in the United States cannot be overstated. The problem with processing abroad is that the immigration laws penalize individuals who remained without permission in the United States for more than six months and then depart – a 3 years bar to reentry for those who stayed without permission in the United States for more than 180 days but less than a year, and a 10 year bar to reentry for individuals who have stayed more than one.
Only applicants who have U.S. citizen or lawful permanent resident parents or spouses are eligible to apply for a waiver of these bars. U.S. Citizenship & Immigration Services may approve this waiver only if it believes that the applicant’s U.S. citizen or permanent resident spouse or parent would suffer extreme hardship if the applicant cannot become a resident. In other words, parents of U.S. citizens – even though they are immediate relatives – can only qualify for a waiver of the 3/10 year bar if they have a U.S. citizen or permanent resident spouse or parent. These waivers do not consider hardship to children, even if it is the child who has filed the petition.
It is important for individuals considering this option consult with a reputable immigration attorney who can explain all the risks and current processing times. Do not believe anybody who guarantees success or short waiting times. In the end, it is the immigration officer you will never meet who will make the decision in your case, not the attorney.
Stay tuned next week for what USCIS looks at to determine extreme hardship.