Since March 4, 2013, undocumented immigrants who are immediate relatives of American citizens**, but are unable to apply for a green card without having to leave the United States because they entered the country illegally, may apply for a ‘provisional unlawful presence waiver’ that eliminates the risk of not being allowed to return to the United States after leaving to report to the American Embassy in their country of origin for an immigrant visa interview.
This change in procedure is called ‘Law of Punishment’. It allows some undocumented immigrants who are applying for a green card based on a family or a marriage petition, to request a ‘provisional pardon’ or ‘waiver’ while being in the United States. a pre-approved waiver eliminates the risk of not being allowed to return to the United States after leaving the US to report to the American Embassy in their country of origin for an immigrant visa interview.
“This final regulation provides the legal immigration process and reduces the time that Americans spend separated from their relatives when they are in the process of obtaining an immigrant visa,” said Homeland Security Secretary Janet Napolitano.
Who Is Eligible
- In order to be eligible to apply for the stateside extreme hardship waiver in the U.S. under the new rule, the applicant must:
- Be married to a U.S. citizen (Or in some cases, immigrants between 17 and 21 years old who have a U.S. citizen parent, or immigrants who have a U.S. citizen child over 21 years old).
- Have an approved I-130 family-based petition.
- Be present in the U.S. at the time of filing the application for the waiver.
- Prove extreme hardship to his or her U.S. citizen spouse or parent.
Who is Not Eligible
- Immigrants who have certain criminal convictions.
- Immigrants who have committed fraud, for example by entering the U.S. with a fake passport through an airport.
- Immigrants with final deportation or removal orders from an Immigration Court.
- Immigrants who have already been scheduled for an interview at their consulate based on an approved family petition.
If you have questions or need help on the provisional pardon Call our office at 919-765-5645 Durham, to our office in Raleigh at 919-838-2883 or at our office in Charlotte at 704-900-2430.
The process has been in effect since March 4, 2013, and more information on how to apply is available on the website http://www.uscis.gov/i-601a. The law firm Velasquez & Associates answered key questions on the subject and all you need to know about this benefit:
QUESTION What does the “Law of Punishment” procedure mean?
V&A: It means that families will not be separated awaiting the government’s decision regarding the application of forgiveness.
QUESTION Who does it benefit?
V&A: It benefits the spouse, children and parents of American citizens.
QUESTION What’s new about the new process and how does it differentiate from the previous one?
V&A: With the previous process, the applicant had to leave the United States to go to an appointment at the American embassy or consulate in their home country and ask for forgiveness. After submitting all the documents, the applicant would have to wait for a decision of the authorities. This decision could take a month or even more than a year, time in which the applicant was separated from his family. Now applicants can wait for a response without leaving the United States.
QUESTION Is this now a rule or a law?
V&A: It’s a rule.
QUESTION While waiting in the United States, do petitioner get a temporary work permit or a legal status?
V&A: Unfortunately not. The applicant does not get any benefits while the case is pending. In fact, and even if the case was approved, the applicant will not get any legal status while in the United States.
QUESTION Would procedures such as medical and physical examinations, criminal background check, and fingerprinting be performed in the United States?
V&A: Medical and / or physical examination will not be performed in the United States. However, Fingerprinting and criminal screening will be done in the United States.
QUESTION What happens if I refuse forgiveness? Would an order of deportation be generated? Do I have a right to appeal?
V&A: If the case is denied, the applicant cannot appeal. However, you may request to reopen the case. Meanwhile, the Immigration and Customs Enforcement (ICE) office could initiate a deportation proceeding against the applicant if the case is denied.
QUESTION After the process in completed, how long would it take the person to get her visa?
V&A: One to two weeks.
QUESTION Where should people expect their new visa, at their home country or at their United States’ address?
V&A: Once the immigrant visa is approved, the applicants must wait one to two weeks in their home country. Then, they can enter the United States with a stamp in their passport. The Resident’s card will be mailed to the applicants address in the United States about two weeks after entering the country.
QUESTION What is the cost of this process?
V&A: The rate of implementation of the ‘provisional pardon’ is $585 and the fee for fingerprinting concept $85.
QUESTION Is this a process that family members can do on their own or do they need an attorney?
V&A: It is very important to hire a lawyer for this process.