Florida Immigration Attorneys

DACA and Provisional Waiver Favorable New Processes

Recently there has been much discussion about immigration reform in the news. For the most part, it is all discussion at this time, and there is no immediate change in the immigration law that affects millions of persons in United States, or seeking to come to the United States.

Although the law has not changed there have been two significant changes in recent months. One is Deferred Action for Childhood Arrivals which is also known as DACA. This program permits certain foreign nationals that came to the United States before the age of 16 to remain in United States, obtain employment authorization, and possibly obtain travel permission for two years increments. The two years may be renewed indefinitely. The DACA program has received widespread coverage in the news media.

The other significant processing change is a provisional waiver process that went into effect on March 4, 2013. The provisional waiver process in many respects is more far reaching for certain persons than DACA and has received less attention from the media. Beginning March 4, 2013, if you are the spouse, child or parent of United States citizen, that is classified by the immigration law as an immediate relative and you have been unlawfully present in United States, you may now apply for a provisional waiver of the unlawful presence through a new process.

The provisional waiver is limited to these individuals that must obtain a waiver of inadmissibility based on unlawful presence in United States. It is restricted to the unlawful presence waiver only which means that persons who have other issues may not utilize this provision. The provisional waiver allows a person with unlawful presence to file for the waiver while in the United States, before leaving United States to attend a visa interview at the US consulate or embassy abroad. This process affects favorably all those persons who have entered the United States without a visa, such as those who have entered United States across the southern or Northern borders without a visa and have remained in United States without lawful status.

Prior to the institution of the provisional waiver process, those who entered the United States unlawfully and subsequently, through marriage or birth or otherwise are related to a United States citizen immediate relative would be required to depart the United States then file for a waiver and hope the waiver is approved before they are permitted to return to the United States as permanent residents.

It is expected the provisional waiver process will shorten the time United States citizens are separated from their immediate relatives while their relative is outside the United States seeking resident status. Additionally, some of the uncertainty will be taken out of the process. Before the provisional waiver process went into effect on March 4 the foreign national family member was required to depart the United States attend an interview at the US consulate, than would be instructed to file a waiver. Since a grant of the waiver is at the discretion of the government official and is based on extreme hardship to the qualifying United States citizen relative, the foreign national and the United States were required to wait months or longer for decision whether or not the foreign national would be permitted to return to the United States.

Under the new process United States citizen and the foreign national relative are permitted to remain together as a family in United States while a decision is made on the merits of the waiver application. Once a decision is made, and assuming a provisional grant is issued, the foreign national is now able to proceed abroad was some relative assurance that the waiver will be granted and the period of separation of the family is expected to be much shorter.

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