Tuesday, May 1, 2012

Proposed Regulations May Help Some Relatives of U.S. Citizens

USCIS has published a notice of proposed regulations in the Federal Register which could provide some assistance to certain relatives of U.S. citizens. Click here for a link to the notice. The proposed regulations would allow those relatives who are known under the law as "immediate relatives" to apply for a waiver of unlawful presence in the United States before leaving to process at a consulate abroad. "Immediate relatives" of a U.S. citizen are that citizen's spouse, children or parents (assuming the citizen is over twenty-one years of age). The new procedure is meant to help those immediate relatives who happen to be present in the United States without lawful status. Under the law, when such a person leaves the United States, they are barred from returning for three or ten years, depending on how long they have had illegal presence. The law already provides for a waiver of illegal presence, provided the potential immigrant can show extreme hardship to a U.S. citizen relative. The proposed regulation changes only the application process. In many cases, the immediate relative has entered the United States illegally. If they have, then they are not eligible to adjust status to a permanent resident in the United States, but must instead return to their home country to process at a U.S. consulate. If the immediate relative applies for the waiver of his or her illegal presence at the consulate, the process can take several weeks or even months. The proposed regulations would allow those same relatives to arrive at the consulate with the waiver in hand, and therefore spend less time overseas waiting for the actual visa. The new regulations will not save any person from removal proceedings. The new process would only help a limited category of aliens with illegal presence. Currently, an immediate relative who entered with a visa, but who overstayed the visa can still apply for adjustment of status without leaving the United States. The new regulations would only help those who entered illegally, without a visa. Critics, such as Judicial Watch have branded the proposed regulations "amnesty." Unfortunately, this only demonstrates their ignorance of U.S. immigration law. The law by no means grants amnesty to illegal aliens. Rather, it solely provides a process to apply for a waiver that is already available under U.S. immigration law, albeit in a more streamlined process. Today, I met a woman whom these new regulations could help. Her daughter is an adult U.S. citizen who has already submitted a visa petition for her. Since filing the petition, the U.S. citizen daughter has become disabled due to a brain injury. The woman has been granted custody of her minor grandchildren. Currently, if she were to apply for the actual visa overseas, the grandmother could spend weeks or months abroad. This would create a huge hardship on the U.S. citizen children, as they would have no one to care for them for a long time, while the grandmother is waiting for the waiver to be granted. If she could apply while she is still in the United States, then the time that she would be forced to spend overseas would be cut dramatically. USCIS is accepting comments on the proposed regulations until June 1.

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