Advice & Help

President Obama Proposes New Rule for Provisional Waivers for Families

Anyone who is familiar with immigration cases is familiar with the argument that immigrants should just return home to acquire their status instead of trying to obtain legal status in the United States.  Political figures, as well as organization against immigrants’ rights, usually inform the public that undocumented immigrants need to simply return to their home country to be processed for permanent residence.  Unfortunately, this is not 100% true. Anyone who has been faced with the realization that he must return home to complete the immigrant process now has to face the possibility of being barred from returning to the United States for 3 or 10 years. In order to avoid the 3 or 10 year bar individuals must submit a waiver petition at the US Consulate. The waiver is discretionary and it is approvable only if the individual can show that his United States citizen or permanent resident family would suffer extreme hardship if the individual did not immediately return to the United States. To an individual who is unfamiliar with the immigration laws the process of submitting a waiver and obtaining an approval seems to be a simple one. However, in reality these waivers are subjected to the discretion of the US Consulate and the approval rate of these waivers are low and inconsistent.   However, recently President Obama’s administration has recognized these inconsistencies in the waiver system and has proposed a new rule to help families who are trying to obtain legal status.  This month’s article will review the 3 and 10 year bar and President Obama’s proposed changes.

Currently, some individual who entered the United Stated illegally or who overstayed their legal entry must leave the United States and return home in order to gain permanent based on their family petition. This process of completing the immigrant visa process is known as “Consular Processing.” Immigration laws state that if an individual is illegally present in the United States for more than 6 months but less than 1 year that individual is barred from returning to the United States for 3 years. Likewise if an individual is illegally present in the United States for more than 1 year that individual is barred from returning to the United Stated for 10 years.  The 3 or 10 year is triggered by the individual’s departure from the United States. However, it is important to note that not everyone may be required to depart the United States to obtain permanent residence. As such, it is imperative that individuals first consult with a competent immigration attorney to determine if they can remain the United States to obtain permanent residence or if they must depart the United States.  For individuals who are required to depart the United States they must file and obtain a waiver of their unlawful presence before they are allowed to return to the United States. In the waiver application the individual must convince the US Consulate that his United States citizen or permanent resident family members would suffer “extreme hardship.” Unfortunately, the approval rate of these waivers are low and the results vary greatly depending on the location of the US Consulate. For example, my experience has shown that the US Consulate in Ciudad Juarez, Mexico and Kingston Jamaica have lower approval rates of waiver petitions in comparison to other US Consulates in different countries. As such, based on these inconsistencies in the waiver process some individuals have opted to remain in the United States in illegal status rather than return home and risk being separated from their family for 3 or 10 years or permanently.

On Friday, January 6, 2012 the Obama administration officials announced they are proposing a fix to a Catch-22 in immigration law that could spare hundreds of thousands of American citizens from prolonged separations from illegal immigrant spouses and children. Now Immigration proposes to allow illegal immigrants to get a provisional waiver in the United States before they depart the United States to obtain their immigrant visas. Having the waiver in hand will allow them to depart knowing they almost certainly will be allowed to return. The agency is also seeking to cut down wait times for immigrants overseas to only a few weeks. Alejandro Mayorkas, the director of the agency, said the purpose was to relieve burdens on citizens while also streamlining a convoluted, costly process. Director Alejandro Mayorkas has stated that once the proposed rule is made final, the rule will allow family members of U.S. citizens to petition the government for the so-called hardship waiver before the undocumented immigrant returns home to formally apply for a U.S. visa. This proposed regulatory change will significantly reduce the time that U.S. citizens are separated from their spouses and children under certain circumstances while those family members are going through the process of obtaining visas to become legal immigrants to the United States. Its purpose is to minimize the extent to which bureaucratic delays separate Americans from their families for long periods of time, specifically in cases where a waiver of inadmissibility due to unlawful presence is required as part of the visa process.

It is important to note that presently the proposed rule is not yet law. Immigration has stated that no one should file an application based on this proposed change. Applicants must wait until the government formally adopts the change. Any applications filed with USCIS based on the proposal will be rejected and the application package returned to the applicant. There is no date certain for implementation. Also, it appears that the new pre-approval process would only be available for the waiver of unlawful presence bars. Those who also need waivers for bars triggered by criminal convictions or past fraud would have to continue to follow the old process where their waivers are submitted and adjudicated abroad.

We are currently in the process of reviewing cases that may benefit from the proposed rule.  If you wish to learn more or to be notified once the proposed rule becomes law you may contact our firm.

Disclaimer: This article is a broad overview and is provided as a public service. This article is not intended to establish an attorney-client relationship. Any reliance on the information contained herein is taken at your own risk. The information provided in this article should never replace informed counsel when specific immigration-related guidance is needed. 


About the Writer:
Safiya Byars ([email protected]) is the senior partner and owner in the Law Office of Safiya Byars ( She is an active member of the Caribbean and International communities in Georgia. She graduated Summa Cum Laude from the University of Montevallo and received her law degree from the University of Alabama in Tuscaloosa, Alabama. Her office is located at 160 Clairemont Avenue, Ste. 200, Decatur, Georgia 30030.  Attorney Byars handles all immigration matters, deportation defense, family law issues, and business formation/litigation. To discuss you case, contact Attorney Byars at 404-992-6506 or 678-954-5809.

About the author

Safiya Byars, Esq

Safiya Byars is the founder and senior partner of the Byars Firm. Attorney Byars serves as the Chair of the Family Immigration Continuing Learning Education and the Vice-Chair of the Immigration Law Section of the State Bar of Georgia. She is a native of Kingston, Jamaica. The Byars firm is located at 3720 Chamblee Dunwoody Road, Suite D2, Chamblee, Georgia 30341. The Byars Firm handles Immigration, Family, and Estate Planning matters. We can be reached at 678-736-5600 and email: [email protected].