Joel entered the United States in 2007 with a crew members’ visa. He had a contract to work for a cruise ship. He had been employed for one year when, during one stop in Florida, he jumped ship and illegally stay in the US. During this time, Joel met Rowena and they got married. Rowena became a naturalized US citizen and filed a visa petition for Joel.
The US Citizenship and Immigration Services denied the application for Joel’s immigrant visa on the ground that individuals with crew members’ visas are not allowed to get a green card through adjustment of status. He was told that he had to apply for his visa outside the US, specifically at the US Embassy in Manila.
Joel was hesitant to depart for the Philippines for fear that he would not be allowed to return. He had been a “TNT (tago-ng-tago)” or undocumented resident for several years and was told that he could be barred from reentering the US for three to 10 years.
Fearing these bars, Joel opted to stay undocumented and risk deportation. He now has two US citizen children and is working without authorization as a parking attendant. Rowena, on the other hand, has been unemployed for quite some time due to a disability. Joel heard about the “stateside” waiver and is wondering if he may now finally legalize his stay. Is he eligible for the provisional waiver of unlawful presence?
Under this new stateside waiver policy beginning March 4, 2013, immediate relatives of US citizens who overstayed may be allowed to legalize their status. The US Citizenship and Immigration Service first announced this new waiver in April 2012 but it took 10 months before a final rule was released on Jan. 3, 2013.
Who will benefit
The stateside waiver, formally known as the Provisional Unlawful Presence Waiver, was announced to benefit undocumented immigrants who are immediate relatives of US citizens. It is to be emphasized that not all relatives of US citizens will benefit from this new policy. It is limited only to parents, spouses and minor children.
Prior to this, undocumented relatives of US citizens who are not eligible to get their green cards in the US must leave the country and apply at the US embassies in their home countries. The consular officer will allow the applicant to file for a traditional waiver of the unlawful presence only after the interview.
If the relative leaves the US to apply for a visa, he or she faces the risk of being denied because of his or her accumulated unlawful stay in the US. If the applicant succeeds in getting permission to apply for a waiver, it may take several months or years. In the meantime, the individual and his family members are separated.
To remedy this situation, the individual who incurs unlawful presence will now be permitted to file for a provisional waiver while still in the US.
The provisional waiver
The release of the final rules on this provisional waiver was anticipated for almost a year. The length of time it took for the rules to become final meant that the US Department of Homeland Security took serious steps to consider how limited or extensive its impact would be on those to be affected by this new policy. An examination of the rules reveal that this provisional waiver has very limited applicability.
Aside from having to prove “extreme hardship,” among the limits set are as follows: (1) it waives only unlawful presence and not other grounds of inadmissibility such as fraud or misrepresentation; (2) as mentioned earlier, it applies only to spouse, parents and minor children of immediate relatives; (3) it does not apply to those who were previously interviewed for immigrant visas at the US Embassy; (4) it does not give provisional immigration benefits such as employment authorization or advance parole; and (5) it allows for no appeal if the waiver is denied.
Reform needed
The US Citizenship and Immigration Service clearly is taking an incremental approach to providing relief to undocumented immigrants. This provisional waiver policy is for a recognizable group of “immediate” relatives. It is going to be implemented in the spirit of family unity but with its limited applicability we cannot raise our hopes too high. A comprehensive reform of the broken immigration system is still the only solution to curb illegal immigration.
(Tancinco may be reached at law@tancinco.com or at 887-7177 or 721-1963)