On March 30, 2012, U.S. Citizenship and Immigration Services (USCIS) posted a Notice of Proposed Rulemaking (NPRM) in the Federal Register that would reduce the time U.S. citizens are separated from their spouses, children, and parents (i.e. immediate relatives) who must obtain an immigrant visa abroad to become lawful permanent residents of the United States.1 The NPRM comment period runs from April 2, 2012 until June 1, 2012.
USCIS previously issued a Notice of Intent regarding the rulemaking on January 6, 2012. (77 Fed. Reg. 1040 (Jan. 9, 2012), Provisional Waivers of Inadmissibility for Certain Immediate Relatives of U.S. Citizens). USCIS' issuance of the NPRM was far ahead of schedule, since it initially stated that it hoped to issue the NPRM before the end of 2012.
The proposed rule would allow certain immediate relatives of U.S. citizens to apply for a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States, if they can demonstrate that separation from their U.S. citizen spouse or parent would cause that U.S. citizen relative extreme hardship. The qualifying U.S. citizen relative who will suffer the hardship need not be the U.S. citizen relative who filed the immigrant visa petition on behalf of the immediate relative.
The current process waiver process allows family members who are unlawfully in the United States to apply for the waiver only after leaving the United States to request a visa from a U.S. Consulate. Once they leave the United States, however, they are then barred from returning to the United States anywhere from 3 to 10 years due to their prior unlawful stay.
The proposed provisional waiver would be granted before the relative leaves the United States to attend his or her immigrant visa interview with a U.S. Consulate. The waiver would not become effective unless and until the relative departs from the United States. If the relative is otherwise eligible for the immigrant visa, the consular officer may then approve the issuance of the visa so that the relative can then return to the United States for permanent residence.
The proposed rule does not change how USCIS determines eligibility for the waiver, nor the test for extreme hardship.
When USCIS announced the intended measure in January 2012, there was a positive nationwide response from the immigration rights community. Immigration lawyers estimate that there are hundreds of thousands of U.S. citizens married to illegal immigrants who face years of separation under the current waiver rule. Lamar Smith (R-TX), Chairman of the House Judiciary Committee who was an author of the 1996 legislation that created the three- and ten-year bars to return by illegal immigrants, has characterized the proposed rule as an abuse of administrative powers.
Footnotes
1.A copy of the NPRM can be found at http://www.ofr.gov/OFRUpload/OFRData/2012-07698_PI.pdf.
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