by: Hedwin Salmen-Navarro
On January 9, 2012 The Department of Homeland Security through 8 CFR Part 212 Published a Notice of Intent of Law called “Waivers for Inadmissibility for Certain Immediate Relatives of US Citizens”. This new law will allow millions of people who are undocumented to legalize their status via Relative Petitions as well as it will push others to become Naturalized Citizens of the United States.
Before this new program, a person who has been here undocumented and does not qualify to apply for residency in the United States would have to leave the country and apply for a Residency at the U.S. Embassy and most importantly apply for an Immigration Pardon (Waiver), to waive the inadmissibility ground of having been in the U.S. undocumented. If the pardon is denied, the Applicant would be barred from re-entering for 10 years. This new program will allow the Foreign Nationals to apply for such waiver while in the United States, thus eliminating the risk of having the waiver denied while outside of the U.S.
The new process will require the following; first the Immediate Relative files an Immigrant Relative Petition (I-130) on behalf of the Foreign National. Once it has been approved, then the Foreign National would have to file for an Immigration Waiver (I-601) proving the Extreme Hardship that would cause the Immediate Relative if he/she is separated from him/her. If such waiver is approved, then the Foreign National would apply for Permanent Residency through Consular Processing. This application for permanent residency will also be filed while the Foreign National is in the United States but it will be decided at a U.S. Embassy. This means that the Applicant will only leave the U.S. after an appointment has been scheduled and will go only to have his or her Residency Application adjudicated. As the U.S. Embassy will not have jurisdiction to deny the application based on the time that the Foreign National spent in the U.S. undocumented. That means that if an appointment is given to the Applicant for Feb 13, 2013, the Applicant will leave the country a couple of days before the appointment and return as a Lawful Permanent Resident a couple of days after the appointment.
Many people have called this new program a back door amnesty. Such classification is completely inaccurate, as an amnesty would pardon ANY inadmissibility ground which would include Crimes and Prior Deportation Orders. This new program will only pardon time spent in the United States undocumented. Plus, it requires a waiver; an Amnesty would just require an application. Finally it requires that the foreign national leave the country for consular processing, which is what the U.S. Government has always wanted being that a U.S. Embassy normally has more access to the Applicants’ history in his or her Country of Origin, such as civil records, crimes, etc. So in no way is this an Amnesty.
Even though this program will not completely fix today’s broken and outdated Immigration System, it’s definitely a start. It’s a win-win for both the Applicants and the U.S. Government. It’s a win for the Applicant because it erases the fear of having the waiver denied while outside the United States, which is the reason why many do not choose to file this request with the system in place today. It is also a win for the Government because it will require for the Applicant to go to a Consular Post, a place where it normally has more information concerning the Applicant’s life in his or her country of origin.
Please note that Foreign Nationals who are intending to apply for Residency under this new program, should do so with a Licensed Attorney. The waiver process is a delicate and complicated one, which requires extensive legal analysis that can be provided only by a Licensed Attorney.
