Keeping Families Together During Green Card Processing - Articles

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Posted by: Christy Gibson on Mar 8, 2012

By: Elaine H. Witty, Esq.*   


     On January 6, 2012, the United States Citizenship and Immigration Services (USCIS)  announced a proposed rule entitled, Provisional Waivers of Inadmissibility for Certain Immediate Relatives of U.S. Citizens.[i] The proposed rule would streamline the adjudication process of waivers of inadmissibility for immediate relatives of U.S. citizens. An immediate relative of a U.S. Citizen is defined as a spouse, parent (if the United States citizen is over age 21), or minor child (under age 21) in immigration law.[ii]

     There are various grounds of inadmissibility[iii] which can prevent an immigrant from legalizing status in the United States. The most common ground of inadmissibility is unlawful presence in the United States for at least 180 days or one year, on or after April 1, 1997.[iv] Unlawful presence for a period of 180 days subjects a person to a three-year bar to re-admission to the United States; a one year period of unlawful presence subjects a person to a 10-year bar to re-admission to the United States. The key is that the bar to re-admission is only triggered when an immigrant departs the United States.

     Current immigration law permits a U.S. citizen to petition for an immediate relative by filing a petition with the USCIS. If the immediate relative is subject to the 3/10 year bars, a green card cannot be processed domestically. Rather, the immigrant must go through “consular processing.” Consular processing means the immigrant will have to leave the United States and apply for re-admission at a U.S. Consulate or Embassy in their home country. As soon as the immigrant departs for the consular interview, the 3/10 year bars are triggered. Existing law permits a U.S. citizen to file for a waiver of the 3/10 year bars through a waiver process. This waiver process requires the U.S. citizen to demonstrate “extreme hardship” as to why the parties should not be separated for the duration of the applicable bar. The application or this waiver is made on USCIS form I-601 and is filed at the U.S. Consulate or Embassy having jurisdiction over the immigrant’s case.

     During the processing of the I-601 waiver for extreme hardship, the U.S. citizen and the immediate relative are separated. The processing time for these waivers runs from several weeks to 15 months. The USCIS is the sole adjudicator of extreme hardship waivers. The Department of State is responsible for issuing a visa once the ground of inadmissibility has been waived by the USCIS.[v]

     The proposed rule would permit the filing of a waiver of inadmissibility as it relates to the three and 10 year bars domestically prior to the immigrant departing the United States to attend a consular interview. This program is limited to immediate relatives of U.S. citizens whose only ground of inadmissibility is unlawful presence. If an immigrant has any other ground of inadmissibility such as crimes, prior immigration violations or orders of deportation, the immigrant may not utilize this program.

     The backlash from the government’s announcement stunned immigrant advocates and their attorneys. This is because the media and anti-immigrant organizations have portrayed this program as an amnesty, which it isn’t. What is missing in the discussion is the fact that current law has always permitted immigrants to file waivers of inadmissibility. The difference is that instead of having to file the waiver overseas and wait over one year, the U.S. citizen and the immediate relative can stay together without disrupting their familial life until a decision on the waiver is received. The waiver issued domestically is called a provisional waiver. It is not clear whether a positive finding of extreme hardship will be considered a legal finding.

     Based on the USCIS’ representations at a recent Stakeholder’s Meeting, it appears that if a positive adjudication on the waiver is received, the immigrant presents the waiver to the consular officer who, absent a finding of any other ground of inadmissibility, will proceed to issue a visa to the immigrant for re-admission to the United States. If another ground of inadmissibility is discovered by the consular officer, the immigrant will again submit evidence of extreme hardship for consideration by the USCIS officer having jurisdiction of that consular post.

     Questions remain about the provisional waiver process in the event a finding of extreme hardship is denied. It remains unresolved as to whether or not the USCIS will refer denied waiver cases to Immigration and Customs Enforcement (ICE) for commencement of removal (deportation) proceedings or if the immigrant will be afforded a time frame in which to depart the United States to continue with the consular processing of the green card. The USCIS expects its proposed rule to be finalized by the end of the 2012 calendar year.


*Elaine H. Witty is founder of Witty Law Group, PLLC a full service immigration law firm with offices in New York City and Memphis. She is a graduate of Yeshiva University Stern College for Women and the Benjamin N. Cardozo School of Law. Ms. Witty serves as Vice-Chair of the Tennessee Bar Association’s Immigration Law Section and is an active member of the immigration bar.  Ms. Witty may be reached via email at

[i] 77Fed. Reg. 1040 (Jan. 09, 2012) (amending 8 C.F.R. §212.7).

[ii] I.N.A. §201(b)(2)(A) (2011); 8 U.S.C. §1151 (b)(2)(A) (2011).

[iii]Health-related grounds; criminal and related grounds; immigrant membership in a totalitarian party; misrepresentation in immigration matters; smugglers; individual subject of civil penalty; and unlawful presence in the U.S. for at least 180 days, beginning on or after April 1, 1997, followed by departure from the U.S.  See I.N.A. §212; 8 U.S.C. §1182 (2012).

[iv]I.N.A. §212(a)(9)(B); waivable under  I.N.A. §212(a)(9)(B)(v).

[v] The USCIS posts officers to larger U.S. Consulates and Embassies and can therefore manage its caseload. However, in the smaller venues, no USCIS officer is posted and waiver applications are collected by a consular officer and dispatched to the USCIS officer in another overseas location for adjudication. In some instances, USCIS officers are unable to make a judgment about whether or not to approve a waiver and will send the waiver case to the United States for processing. This is why there is such a wide variation in processing times by U.S. Consulates or Embassies.