National Immigrant Justice Center
208 S. LaSalle St., Suite 1818, Chicago, IL 60604
What You Need to Know: Proposed Change to Consular Processing for Permanent Residence Applications for Immediate Relatives of U.S. Citizens
On January 6, 2012, the Department of Homeland Security (DHS) announced its intention to propose changes to the permanent residence application process which would benefit immediate families of U.S. citizens. It is not a change in the law, only a change in procedure. DHS officials say the new rules will be officially proposed in spring 2012 and likely will not be implemented until the end of 2012.
How the process works now
The law currently requires that spouses and minor children of U.S. citizens who entered the United States without inspection (undocumented) residing in the United States leave the country to obtain permanent residence (also known as a “green card”). The law imposes certain bars for individuals who leave the United States after residing here for more than six months without legal documentation. The most common is a bar of 10 years for people older than 18 years who have lived undocumented in the United States for more than one year. Immediate relatives of U.S. citizens can request a waiver to these bars if they can show that prolonged separation would cause extreme hardship to U.S. citizen family members. This process usually is long and the immediate relatives must wait outside the country for many months or even a year.
How the process may work if DHS’s proposal is implemented
The process that DHS wants to implement would permit spouses and minor children of U.S. citizens to request the waiver before they leave the country, helping families to avoid prolonged separation. The proposed change would only apply to spouse and minor children of U.S. citizens. It would not benefit relatives of lawful permanent residents. It also would not apply to other types of waivers individuals may require to obtain their green cards and reenter the United States.
A step-by-step comparison
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Current Process |
Proposed Process |
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U.S. citizen files a relative petition on behalf of an immediate relative (minor child or spouse) |
U.S. citizen files a relative petition on behalf of an immediate relative (minor child or spouse) |
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Family petition is approved |
Family petition is approved |
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Consular processing begins (the U.S. Department of State will request the visa application, information about economic support and the schedules for the consular interview) |
Consular processing begins (the U.S. Department of State will request the visa application and information about economic support) |
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The relative leaves the United States to attend the consular interview |
The relative files a waiver of the bar to reentry for having been present in the United States for more than six months |
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During the consular interview, the immigration official determines that the relative needs a waiver of the bar to reentry bars for having been present in the United State for more than six months |
The waiver is approved |
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A second consular interview is scheduled and the relative submits the waiver application |
The relative leaves the United States to attend the consular interview |
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Often, after several months, the waiver is approved and the relative is finally permitted to return to the United States |
Following the consular interview, it takes only a few weeks for the visa request to be processed so that the relative can return to the United States as a permanent resident |
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If the waiver is denied, the relative will usually be unable to legally reenter the United States |
If the waiver is denied, it is very likely that the relative will be referred to deportation proceedings. |
WARNING: Don’t be a victim of immigration fraud. If you need legal assistance, consult a qualified immigration attorney or a legal aid organization recognized by the Board of Immigration Appeals.