By Atty. Dahlia A. Walker-Huntington, Esq
HOLLYWOOD – The Department of Homeland Security announced changes to the processing of some immigrant visas – effective, March 4, 2013.
Currently, a person is eligible to adjust their status to that of a permanent resident (i.e. remain in the United States to pick up their Green Card) only if they meet certain criteria. You must have entered the United States legally – with a passport and visa in your own name, and be the immediate relative of a US citizen (i.e. be the spouse, parent or under 21 year old child of a US citizen). All other relatives must be in status at the time of their immigrant visa interview in the United States to be qualified to collect their Green Cards in the United States, or they have to leave the country for an immigrant visa interview in their home country.
For example, if you are the over 21 year old son of a US citizen who has been out of status in the United States at the time of your immigrant visa becoming available, you cannot change your status in the United States – you have to go to your home country for an immigrant visa interview.
With changes to the immigration laws in the late 1990s, if you remained in the United States out of status for six months to a year and leave the country, you face a mandatory three year bar to returning. If you leave the US after being out of status for a year or more, you face a mandatory 10 year bar to returning to the United States.
This mandatory bar creates severe hardships to families who are separated for extended periods of time while their requests for waivers are being decided. This new provisional waiver will allow immediate relatives who would face the mandatory bar to be able to apply for the waiver in the United States and have the outcome decided before they left the country. Arguably if the waiver is denied, the immigrant would not want to leave the country as they would never be allowed to return. In such cases the immigrant would likely be placed in removal proceedings and would have to seek prosecutorial discretion to not be slated for deportation.
It is important to note that the provisional waiver will be extremely helpful to some, but it will not apply to everyone. Consult with an experienced immigration lawyer before making any life changing decisions.
Dahlia A. Walker-Huntington, Esq. is a Jamaican-American attorney who practices immigration law in the United States; and Family, Criminal & Personal Injury Law in Florida. She is a Mediator, Arbitrator and Special Magistrate in Broward County, Florida. [email protected]. 954-963-8555
