HIGHLIGHTS FROM PRESS CONFERENCE OF JANUARY 6, 2012 with USCIS Director Alejandro Mayorkas answering questions regarding “USCIS To Propose to Change Process for Certain Waivers Based on Unlawful Presence “
Read the full Transcript of the Press Conference.
SUMMARY: “And so the goal here, through a proposal that is designed to achieve process efficiency, the goal is to reduce the time of separation and alleviate the extreme hardship to a United States citizen as the law currently intends.” Moderated by Edna Ruano, Chief, Office of Communications (USCIS)
[We have condensed the 12-page transcript into a brief overview in Director Mayorkas’ own words (italics). Bold and normal fonts are our additions for clarity and emphasis]
Moderated by Edna Ruano, Chief, Office of Communications (USCIS)
Before answering questions, USCIS Director Alejandro Mayorkas made this statement:
The Notice of Intent that we posted in the Federal Register regarding a proposed regulatory change in the processing of Waivers of Inadmissibility. This proposed regulatory change will significantly reduce the time that U.S. citizens are separated from their spouses and children under certain circumstances while those family members are going through the process of obtaining visas to become legal immigrants to the United States. Its purpose is to minimize the extent to which bureaucratic delays separate Americans from their families for long periods of time, specifically in cases where a Waiver of Inadmissibility due to unlawful presence is required as part of the visa process. The proposed streamlined process will be available to spouses and sons and daughters of U.S. citizens who have accrued a certain period of unlawful presence in the United States as the waiver statute requires and can demonstrate that separation would cause an extreme hardship to their U.S. citizen spouse or parent.
The process would allow these individuals to have their waiver applications processed in the United States and receive a provisional waiver determination before they complete the visa process at a consulate outside the United States. This proposal would not change existing laws, the requirement that immigrants leave the country to process their visas, or the standards for determining who is eligible for a Waiver of Inadmissibility. And allow me to emphasize this last point: The law as currently written is designed to avoid extreme hardship to a United States citizen. Existing law provides that to achieve this goal a U.S. citizen’s spouse or child who is here unlawfully can obtain a waiver and become a legal resident if their separation would cause extreme hardship to a United States citizen.
We are proposing a process change to better serve the current law’s goal, a change that will reduce the time of separation and thereby alleviate the extreme hardship to the United States citizen.
The Current Process
And I think it might be helpful, before I really give you the opportunity to ask questions, to explain the current process – to explain the process as contemplated so that you understand the change that is being made and what is not changing. Currently, once the familial relationship between the spouse or son or daughter and a U.S. citizen has been established by U.S. Citizenship and Immigration Services, once we have already adjudicated that familial relationship, an individual who is unlawfully present in the United States must leave the United States and, after having departed, apply for a Waiver of Inadmissibility. The Waiver of Inadmissibility would be adjudicated by U.S. Citizenship and Immigration Services, by us, and the time it takes us to adjudicate those waivers, on average, is approximately six months, but often it is longer than that. And if indeed we grant the waiver, then the individual would be able to have a visa issued and enter the country.
What happens is the individual – to be more specific, the individual departs the country, has a consular interview, the Department of State determines the different grounds of inadmissibility, and the individual would then seek a waiver of those grounds from USCIS. And if indeed we grant the waiver, the individual’s case returns to the Department of State for the issuance of the visa. What happens under current process is that the case moves back and forth between USCIS, and the Department of State, and the individual, who has been granted a Waiver of Inadmissibility because the separation between him or her and the United States citizen relative would serve an extreme hardship on the United States citizen, will have been separated from that United States citizen for at least six months and most often more.
What are the proposed changes to process?
The proposal as contemplated now is that the spouse or son or daughter of the United States citizen could apply for a waiver before departing the United States if the only ground of inadmissibility is unlawful presence. USCIS will adjudicate that waiver, and if that waiver is granted, if we determine that the ground of inadmissibility is unlawful presence and the separation between that individual and a United States citizen would serve an extreme hardship on the United States citizen relative, we would grant a provisional waiver.
The individual, the relative, would then depart the United States for their visa interview. The Department of State would confirm that the only ground of inadmissibility is unlawful presence, and if indeed that was confirmed and there was no other deterrence to admission, such as the commission of fraud, then the provisional waiver would be finalized and the individual would be admitted to the United States. And so the period of separation is significantly reduced because the time that it takes USCIS to adjudicate the waiver would be accomplished before the individual has departed the United States. We are not changing the standard. The standard remains. [3 main points to remember]
- The standard of adjudicating a waiver remains extreme hardship to a United States citizen.
- The individual must still depart the United States.
- The only ground of inadmissibility as to which this proposed process change applies is the ground of unlawful presence.
Who new process does NOT apply:
It does not pertain to people whose ground of inadmissibility is, for example, the conviction of a crime. And I should add that in that regard, to ensure that our national security and public safety interests are fully protected, USCIS, before adjudicating and granting a provisional waiver, will be taking the biometrics of the applicant and doing our background checks.
And so the goal here, through a proposal that is designed to achieve process efficiency, the goal is to reduce the time of separation and alleviate the extreme hardship to a United States citizen as the law currently intends.