Stateside Waivers: Not Everyone Benefits
On March 4, 2013, USCIS started to accept provisional unlawful presence waiver applications for certain immigrant visa applicants who are the spouses, children, and parents of U.S. citizens (i.e. “immediate relatives”). The provisional unlawful presence waiver process allows illegal foreign nationals in the U.S., who only need a waiver of inadmissibility for unlawful presence, to apply for waivers (and receive decisions on them) prior to departing the U.S. to attend their interviews at a U.S. embassy or consulate abroad. The new process is expected to shorten the time that U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States. Undoubtedly, there are many individuals who will benefit from the process and such persons will be able to safely complete their residency process without having to worry about whether and when they would be granted visas to return to their U.S. citizen family members. Likewise, the possibility of the ability to apply for this waiver will eventually extend to family-based categories is reason for celebration.
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Notwithstanding the above, however, the fact remains that the provisional unlawful presence waiver process excludes many individuals who really ought to be. Under the new rule, those persons who previously started the process and paid the required government fees cannot apply for this waiver. Such persons are being arbitrarily punished and for no good reason whatsoever! They must continue the process under the “old rule” – assume the risk of travel when they depart the U.S. and then wait to find out whether or not their immigrant visa applications will ultimately be granted. This step is required if they are to successfully return to their loved ones in the U.S. Even if such persons decided to file new applications, they will find themselves between a rock and a hard place. To receive the benefits under the new stateside waiver process, all applications would have to be withdrawn and cases would have to be started anew. In other words, their choice would be between: (1) continuing with their existing pending cases with all its risks and uncertainties as they near the front of the line to probably obtain their immigrant visas or (2) abandoning those applications, starting over a new, which means joining the back of the line for years until a new appointment is scheduled, and paying fees again!
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It should be obvious why the above highlighted inconsistencies should not be allowed to occur. The very purpose of implementing the provisional unlawful presence waiver is to reduce the various strains on United States citizens whose immediate relatives are unlawfully present and must depart the U.S. to receive their visas for return. Why now arbitrarily punish those who filed earlier than others?