As of today , President Obama launched a renewed effort at achieving comprehensive immigration reform . His speech seems to be an effort to stay ahead of the so-called “ Gang of Eight ”, a group of Senators from both parties that a day earlier proposed a framework for a bi-partisan effort at immigration reform . One thing is clear the momentum is building for comprehensive immigration reform . What this means for immigrants present in the United States is still unclear . Obama said in his speech that it is time to fix the system that he has been trying to patch during his first term in office . Two of those patches that Obama has implemented are Deferred Action for Childhood Arrivals ( DACA ) and Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives .
A “ Provisional Unlawful Presence Waiver ” is the new process that Obama has directed the Department of Homeland Security to implement by promulgating amendments to existing regulations . Let ’ s start by looking at how the process worked before the changes and how some eligible aliens can now take advantage of the new process .
First of all , this process is beneficial only for “ immediate relatives ”. These are defined as “ children , spouses , and parents of a citizen of the United States ”. In other words , only someone married to a US citizen , a son or daughter of a US citizen under 21 years of age , or parents ( over the age of 21 ) of a US citizen . Note that this does not apply to any relatives of Legal Permanent Residents .
Before the amendment of the rules , immediate relatives of US citizens already in the United States could apply for residence but were forced to use what is known as Consular Processing if they entered the US without a visa . In other words , they could not gained residence while remaining in the US . They were forced to return to their country of origin in order to obtain residence to pursue the process at a US Embassy or Consulate . There are certain exceptions to this such as the 245 ( i ) but application is limited . The problem with this process is that once the alien returns to the country of origin , the alien incurs a bar to returning to the US for a period of either three or ten years depending on how long the alien has been present in the US unlawfully . In most cases , aliens have exceeded the one year mark and thus incur the ten-year penalty .
The problem with the process as it existed before the Provisional Waiver is that a waiver is not possible unless the alien triggers the penalty . This only happens after the alien decides to leave the US to pursue Consular Processing . So the alien has to go through the process of having an interview at a US consulate schedule only to find out what he or she already knew . She would need a waiver in order to return . This process is inefficient and can last for a year or more . All of this time the alien has to be separated from his or her family in the US .
In order to alleviate this lengthy separation of families in very harsh conditions and still allow immediate relatives to become legal permanent residents , President Obama ordered the implementation of the so-called Provisional Waiver . This new process will be available on March 4 , 2013 . The process will allow aliens who are immediate relatives to file for a waiver before they leave the US and thus trigger the bar or penalty of returning to the US . These aliens can pursue the process while still remaining in the US . They will eventually have to leave the US in order to get their visa because this is mandated by law , but the separation is expected to be dramatically reduced . This is because before they leave the US they will have a “ provisional approval ” of a waiver of the three or ten-year bar to returning . Only certain immediate relatives qualify , however . In order to be eligible for the provisional waiver , the sole issue of inadmissibility is the unlawful presence . What this means is that other issues of inadmissibility to the United States , such as serious crimes , repeat immigration violators , those having committed immigration fraud , and those having unlawfully voted in the US will not be eligible for the provisional waiver .
If you believe that you or your alien relative may qualify for this Provisional Waiver , you can contact our offices for a free initial consultation .
Gil Sanchez Valencia , III , Esq . Hillsborough : 201 S . Westland Ave ., Tampa , FL 33606 Pinellas : 13575 58th Street North , Suite 103 , Clearwater , FL 33760 Broward : 8527 Pines Boulevard , # 201 , Pembroke Pines , FL 33024 O ( 813 ) 254.1777 - F ( 813 ) 254.3999 www . sanchezvalencialaw . com
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