Image Source: gelsantosrelos.typepad.com
Image Source: gelsantosrelos.typepad.com

It is almost impossible not to have a story to tell if one decides that America is the promised land. The immigration process is complex and can be lengthy for anyone who intends to make their American dream come true.

Whether life in the United States is “with papers” or “no papers” is an entirely different issue, and this is not talked about most of the time.  That is why quite often, we get curious about what’s new out there that might help us improve our immigration status.

There have been a couple of changes that target specific groups of aliens. These are the DACA (Deferred Action for Childhood Arrivals) for children who were brought to this country illegally by their parents and who can be issued work permits if they are qualified; and the recently announced “provisional waiver” which takes effect on March 4, 2013.

Again, we begin to ask if this time we are the fortunate ones to receive some benefit or relief (short of amnesty) that can be availed of so we can stop “hiding” from the authorities, as aspiring immigrants usually say.

Take note that these changes are only policy directives of the administration and not provided in any law passed by Congress. Policy directives do not give any immigration benefits like a green card or a way to citizenship.  Only Congress can give these benefits.

The three important things to remember about “provisional waiver” are: (1) the applicant must have a spouse or a parent who is a US citizen (green card holders not included); (2) the applicant is inadmissible only on account of unlawful presence (if you become inadmissible because you lied to the officer or that you had a drug conviction or other specific crimes involving moral turpitude, the provisional waiver is of no significance to you); and, (3) the applicant must show that the denial of the waiver would result in “extreme hardship” to the  US citizen-spouse or -parent.  A new form ( I-601A)  will be available in applying for the “provisional waiver.”

Before the provisional waiver was proposed, a similar remedy was put in place and continues to exist.  It is used in specific circumstances such as when one becomes inadmissible because of a conviction or fraudulent misrepresentation or simply because of unlawful presence (one is not eligible to apply for adjustment of status because you came into the country without inspection or as a seaman who cannot apply for adjustment of status).

Under an existing rule, a provisional-waiver applicant must return to his/her country of origin, then apply for the waiver at the US Embassy there.  The applicant will seek to be allowed to re-enter the US because the US petitioner would experience “extreme hardship” if the applicant is not allowed to return.

Previously, the waiver applicant would be separated from the family for years while waiting for the adjudication of the application.  This goes against the core purpose of US immigration – which is to preserve family unity.  Under the “provisional waiver,” the applicant can file the application in the United States and stay here with the family while awaiting the approval of the application.

The provisional waiver, not the actual waiver yet, will be granted to the applicant. This means the grant of the “final waiver” is dependent upon the assessment and adjudication by the US Embassy in the country of origin.

The new directive is very specific: (1) It does not give a work permit or permission to travel; (2) it does not grant lawful status; (3) it stops the accrual of unlawful presence; (4) it provides protection from removal; (5) it removes the requirement to depart from the US to obtain a visa abroad; and (6) it guarantees immigrant visa issuance of lawful admission to the US.

An immigrant is still in suspense and hoping for a happy ending.

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