Effective March 4, 2013, the Secretary of the Department of Homeland Security (DHS) will institute the new process it created that will allow immediate relatives (intending immigrants who are the spouses, children and parents of U.S. citizens) to apply for a provisional unlawful presence waiver while they are still in the United States and before departing for their immigrant visa interviews abroad.1 Under the old unlawful presence waiver procedure, immediate relatives who entered the U.S. without permission/inspection (EWI) could not apply for their green card/lawful permanent residency in the U.S. unless their case fit within limited legal exception(s) to the general rule.2 These individuals had to travel abroad to obtain an immigrant visa/green card from the Department of State (DOS) before they could return to the U.S. and be admitted as a lawful permanent resident. Leaving the U.S. usually resulted in the risk of a ten (10) year bar to re-entry if the applicant was in the U.S. unlawfully for over a one (1) year period before departing. The applicant had to apply for and obtain approval of a waiver while outside the U.S. if (s)he wanted to come back to the U.S. before the ten (10) period. If this waiver was denied, the applicant could not return to the U.S. for at least ten (10) years. Effective March 4, 2013, under the new procedure, the immediate relative applicant may now file the waiver application with the USCIS while (s)he is still living in the U.S. Once the waiver application is approved, the applicant/immediate relative may then travel abroad to complete the immigrant visa process. It is expected that this new process will result in a substantial decrease in the lengthy separation of U.S. families that occurred under the old procedure. Beware. Not everyone qualifies for the provisional unlawful presence waiver. In addition, departing the U.S., even with an approved waiver, may result in years of separation from loved ones if other factors come into play which make the applicant/immediate relative inadmissible (e.g. not eligible for an immigrant visa.) For instance, the applicant may have certain criminal convictions or a prior removal/deportation order causing additional complications and problems for the case. In such a case, re-entry to the U.S. in a timely manner may not be an option. Following are just a few of the requirements for the waiver application, not a complete list: the applicant must be physically present in the U.S. when the application is filed; (s)he must be at least 17 years old; (s)he must be the beneficiary of an approved immigrant visa petition classifying him or her as an immediate relative; and (s)he must have an immigrant visa case pending with the DOS for which all the processing fees have already been paid. On the other hand, the applicant may not be eligible for the waiver if, to name just a couple of examples: (s)he has a pending Form I-485 (adjustment of status application) with the USCIS; and/or (s)he has an outstanding order of removal or deportation from an immigration judge. In addition to other factors, the provisional unlawful presence waiver process: does not give the applicant lawful status in the U.S. while (s)he is waiting approval of the waiver; (s)he may still be deported or removed from the U.S. at any time under the current immigration laws and policies; it does not give the applicant permission to work while waiting in the U.S. for waiver approval; and does not guarantee that if the applicant leaves the U.S. after the waiver is approved that they will qualify for visa issuance or admission back to the U.S. There are many factors which must be consider before deciding to file this waiver with the USCIS. If the waiver is filed and approved, the applicant must still question whether they should depart the U.S. in hopes of a rapid return. 1AILA InfoNet Doc. No. 13011041. 2Example: the applicant qualifies under another area of the Immigration and Nationality Act (INA) such as, but not limited to INA 245(i), they are a victim of domestic violence or certain other crimes (VAWA, U visa status), TPS, asylum, ect…

President Obama has promised a vigorous push for a comprehensive immigration reform early in his second term. He has not yet announced a specific plan for immigration reform though he is likely to present an outline during the State of the Union address on February 12, 2013. Issues expected to be addressed include, but are not limited to: a pathway to U.S. citizenship for the 11 million undocumented immigrants;1 a national system to check the legal status of all workers; and creation of a guest-worker program to provide a way for low-wage workers to enter to the U.S. legally.2 A bipartisan group of congressman named the “Gang of Eight” are working on an immigration bill but have not gone public with what will be included in their bill beyond the commitment to an earned pathway to citizenship for the 11 million undocumented immigrants in the U.S. Sen. Charles Schumer (D-N.Y.), a leader of the group assured the New York Times that immigration reform is a top priority and is “so important now to both parties that neither the fiscal cliff nor guns will get in the way.”3 White House press secretary Jay Carney said Tuesday that the administration expects the immigration debate to begin in earnest soon after president Obama is inaugurated on Monday, January 21, 2013. Carney stated that he was encouraged by the immigration proposals outlined over the weekend by Sen. Marco Rubio (R-Fla.). In a series of recent interviews, Rubio, who is working on several immigration bills with both Democrats and Republicans, indicates that he hopes to introduce in the coming the weeks, certain immigration provisions which: call for a path to citizenship for illegal immigrants already in the U.S.; increase the number of visas for skilled workers to bring in more engineers and other high-tech professionals who are in demand; increase the number of visas for farm workers; include an alternative to the Dream Act; and in order to win Republican support, include a provision for tighter border controls and increased enforcement.4 An aide for Rep. Paul Ryan said on Tuesday that the congressman “supports the principles outlined by Sen. Rubio and will continue to work with Sen. Rubio and members on both sides of the aisles to fix our broken immigration system.” Rep. Raul Labrador (R-Idaho), a conservative who was born in Puerto Rico has emerged as a leader in the House on the immigration issue stating that “I think we need to let people understand that we’re a party of inclusion, we need to let people understand that we want them, we welcome immigrants, and we welcome anybody who wants to join our party.” However, many Republicans remain staunchly opposed to any bill that sounds like an “amnesty.”5 The technology industry is crying out for immigration reform. Experts in the field are pushing for immigration reform as a way to educate and retain the most talented workers in the world. Leaders in these industries stress that the U.S. needs more high-level scientists and engineers and that immigration reforms will allow them to retain highly skilled foreign workers to help bolster the economy and spur innovation. As it stands, they say, too many workers currently obtain advanced degrees in the U.S. and return to their home countries to start businesses that compete with companies here. Gary Shapiro, president and chief executive officer of the Consumer Electronics Association, said business owners need reform desperately and that immigrants create economic activity, whether they are highly skilled or not.6 1How Do We Know There Are 11 million undocumented? The figure actually comes from the Pew Hispanic Center, a research institution. See http://abcnews.go.com/ABC_Univision/News/11-million-undocumented-immigrants/story?id=17886889 2http://abcnews.go.com/ABC_Univision/obama-rubio-immigration-plans-difference/story?id=18212543&singlePage=true&utm_source=AILA+Mailing&utm_campaign=b94db8b9c0-AILA8_1_16_13&utm_medium=email 3Id. 4http://www.washingtonpost.com/politics/citing-rubios-ideas-on-immigration-reform-white-house-sees-hope-for-bipartisan-deal/2013/01/15/d83f4102-5f48-11e2-9940-6fc488f3fecd_story.html, http://www.tampabay.com/opinion/editorials/rubios-helpful-move-on-immigration-reform/1270655 and http://www.politico.com/story/2013/01/paul-ryan-marco-rubio-immigration-86254.html#ixzz2I8w7Ca41 5Id. 6http://abcnews.go.com/ABC_Univision/Politics/tech-experts-immigration-reform-happen/story?id=18220248.