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It is a well understood law that in general a person who entered the U.S. illegally or overstayed the time granted by U.S. Citizenship and Immigration Services (USCIS) is not permitted to adjust Immigration status in the U.S. By staying in the U.S. such a person builds up “unlawful presence” time in the U.S.

A person who is unlawfully present in the U.S. for 180 consecutive days but less than one year, who voluntarily departs the U.S. before the beginning of removal proceedings, is prohibited from being readmitted to the U.S. for three years from the date of departure or removal from the U.S. Also, a person who has been unlawfully present in the U.S. for one year or more consecutively and seeks to be readmitted to the U.S. is barred from the U.S. for 10 years from the date of departure or removal from the U.S.

The legal solution or remedy for this three-year or 10-year prohibition problem is to ask U.S. Citizenship and Immigration Services for an I-601 Waiver of Unlawful Presence. The I-601 Waiver is based on showing evidence that the foreigner’s spouse, would experience “extreme hardship” as a result of the separation.

For many years, the I-601 Waiver has suffered from a serious disadvantage. The U.S. Citizenship and Immigration Service has insisted that the I-601 could only be filed after the person had departed the U.S. Also, there was the possibility that the I-601 Waiver might not be granted, resulting in the foreigner being stranded outside the U.S. and separated from his family, possibly permanently.

However, there is some good news. U.S. Citizenship and Immigration Services (USCIS), has published a plan to reduce the time that U.S. Citizens are separated from their spouses and children under certain circumstances while their family members are processed overseas for legal immigration to the U.S.

The proposed plan was described in detail by USCIS in the U.S. Federal Register dated January 6, 2012. The plan is now open to public comment and maybe modified. The plan would streamline the processing of these individuals waiver applications based on USCIS processing their waiver applications in the United States before any American family faces separation. The streamlined process would only apply to immigrants who are eligible for a visa.

Eligible spouses and children of U.S. citizens would apply for a provisional Waiver before leaving the United States to have their immigrant visa application processed at a U.S. Embassy or Consulate abroad. The proposal limits the streamlined process to those individuals who are inadmissible based solely on having accrued a period of unlawful presence and pursuant to statutory requirements -- who can demonstrate extreme hardship to their U.S. citizen relative.

All individuals affected by this streamlined process would also need to meet all other legal requirements for admission to the United States, including the requirement that they process their visa application at a U.S. Embassy or Consulate outside the U.S.

With the change outlined in the notice, individuals who currently qualify for an I-601 Waiver of Inadmissibility under the existing eligibility standards, and who can demonstrate that separation from their U.S. citizen spouse or parent would cause extreme hardship to that relative, would be allowed to apply for a provisional determination of Waiver eligibility while still in the U.S.

USCIS believes the new plan would provide a more predictable and transparent process and improve processing times, minimizing the separation of U.S. citizens from their families. The change would also streamline the process for both USCIS and the Department of State (DOS) when handling requests for these waivers.

As a result, this change should encourage individuals who may be eligible for a Waiver of Inadmissibility to seek lawful readmission to the U.S. by reducing the amount of time they would need to spend away from their U.S. citizen spouse or parent.

The author is an attorney, and former US immigration officer specializing in immigration and citizenship matters with the Schiller Law Group.

Important Disclaimer:- The information provided in this article is not intended to create and does not create an attorney-client relationship. Readers must not act upon any information without first seeking advice from a qualified attorney.

Updated 2:33 pm, February 1, 2012
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