USCIS proposes processing 3/10 years bar waivers before alien departs US (Great news for crewmen, K-1's, and EWI's)

On January 6, 2012, the USCIS published a proposal to allow immediate relatives of US citizens (spouse, parents, child) to request a waiver of the 3/10 year bar, before they depart the US for immigrant visa processing at the US Embassy. If this proposal is implemented (or put in force), it could have tremendous benefits for: (a) crewman (or jump ships) who married US citizens, but do not have the benefit of Section 245(i); (b) people who entered the US without inspection (EWI), who married US citizens, but do not have the benefit of Section 245(i); and (c) people who entered the US on a K-1 fiancée visa, but did not marry the American who petitioned them, but instead married a different American. In all these cases, the person is ordinarily not eligible to receive a green card (adjust status) in the US, but instead must go back to the Philippines for an immigrant visa, which could trigger the 3/10 year bar.

The purpose of this proposal is shorten the amount of time citizens are separated from their family members who must process their immigrant visas overseas, and apply for the 3/10 year bar waiver.

However, it is important to remember that this is only a proposal, and is not yet a law or regulation. In fact, the USCIS already cautions, “Do not send an application requesting a provisional waiver under the procedures under consideration in this notice. Any applications requesting this new process will be rejected. . .”

But before you jump on a plane for Manila, here are some FAQs about this recent proposal:

1. What is the 3/10 year bar?

The 3/10 year bar is a law which basically states that anyone who is out of status in the US for more than 180 days, but less than a year, and then departs the US, is barred from returning for 3 years. Anyone who had been out of status for more than one year, and then departs is barred from returning for 10 years. This 3/10 year bar is triggered only when the alien departs the US

2. What is the procedure currently in place for people who are subject to the 3/10 year bar?

Under current law and procedures, when a person has been found to have triggered the 3/10 year bar (by departing the US after being out of status for more than 180 days), the person must apply for a waiver (or forgiveness) at the US Embassy by demonstrating that certain relatives (called “qualifying relatives”) would suffer “extreme hardship” if the waiver is not granted. At present, these qualifying relatives include the person’s spouse or parent who is a US citizen or lawful permanent resident (LPR). A child is not considered a “qualifying relative” for purposes of evaluating the waiver or extreme hardship. However, the alien must apply for the waiver only after he or she departs the US and applies for the immigrant visa at the Embassy. And the adjudication of the waiver may take weeks, months, or even years to be completed, and families are long separated in the process.

3. Who would be eligible under the proposed “provisional waiver” process?

The only family members eligible for this new procedure would be immediate relatives (spouse, parent, or minor child of US citizen), and only where a US citizen parent or spouse would suffer extreme hardship. Therefore, a petition by an LPR relative would not qualify, or where the qualifying relative is not a US citizen, or in an employment-based petition. For example, if you are being petitioned by an LPR spouse, you would not be eligible under this process, since it would not be an “immediate relative” petition by a US citizen. Similarly, if you were petitioned by a US citizen child, but do not have a spouse or parent who is a citizen (i.e. your spouse is still an LPR), you also would not be eligible for this provisional waiver program, as you don’t have a “qualifying relative” who is a citizen.

4. What are the benefits of this proposed “provisional waiver” program?

This new proposal would allow immediate relatives, with US citizen parent or spouse, to already apply for a waiver of the 3/10 year bar, while still in the US, and before they depart the US for immigrant visa processing overseas. If the waiver is granted, they would then depart the US (with the waiver in hand), and thus would not have to wait several months outside the US to process that 3/10 year bar waiver.

5. Would this provisional waiver process apply to other immigration violations or grounds of inadmissibility?

No. This provisional waiver would apply only to the 3/10 year bar. If a person has other immigration violations, such as fraud (assumed name entry) and the like, which also require a waiver, the person would still have to apply for a waiver for those violations outside the US.

6. If I’m being petitioned as an immediate relative, do I really need to depart the US?

In many cases, people who are being petitioned as an “immediate relative” are still able to adjust status (obtain their green card), in the US even if they are out of status, worked without authorization, or do not have the benefit of Section 245(i). So I don’t see why those people who are eligible to adjust status in the US would even think of departing the US, and, therefore, trigger the 3/10 year bar.

7. Are there any people who could benefit from this proposed “provisional waiver” process?

There are still a few categories of aliens who are not eligible to adjust status in the US, even if petitioned by a US citizen as an immediate relative. These include: (a) crewman without Section 245(i); (b) someone who entered the US without inspection (EWI) and does not have the benefit of Section 245(i); (c) a person who entered the US on a K-1 fiancée visa, but did not marry the American who filed the K-1 petition, but married a different American instead, and the like. So this proposal could possibly benefit them, if they have no other immigration violations, such as fraud, misrepresentation, etc.

In conclusion, if this proposal is ever put into effect, you should definitely seek the advice of a reputable attorney, who can evaluate your circumstances and status, and determine if it is even necessary for you to depart the US, and if so, can assist in preparing and processing this provisional waiver. As you can see, only certain people would be eligible for this provisional waiver.

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