The initiative would allow spouses, parents, or children of US citizens who have been illegally in the country to legalize their status without a lengthy wait abroad.

USCIS announced a Notice of Intent to change its current process of not initiating consideration of waivers necessary for illegal immigrants to return to the U.S. until they have left the United States. Eduardo Soto, CEO  of Como Inmigrar a USA ,  stated: "this is a big step forward in a field the Obama Administration has done little about” said the immigration lawyer in Miami.

According to Soto, hundreds of thousands of petitions are not acted upon by beneficiaries because of a fear they will not be allowed to return to the United States. Currently family petitions filed by U.S. Citizens on behalf of unlawfully present immigrants in the country require the immigrant to leave the U.S. and present himself or herself to an Official at a US Consulate before consideration of a waiver necessary for them to come back actually begins. “The official contemplates their waiver request before issuing a decision on their residency visa application, a process that can take anywhere between six months to more than a year, and in some cases several years, depending on several factors not in control of the applicant.

The proposed rule would allow for consideration of a waiver while the immigrant is in the United States, before having to leave for their interview with the Consulate Official, preventing separation from their families for lengthy periods while it is considered.  If the immigrant is granted a waiver, applicants will still have to travel outside the United States to receive a residency visa but the Consular Officer will not have to wait for analysis and determination of the waiver to be conducted before they issue a formal decision on the case as a decision on the waiver will have been made already.

Analysis

The proposed rule would ensure applicants are not separated from their families for more than several days.  It is important to note many applicants who stand to benefit from this proposed rule will now choose to exercise their right to apply for an immigrant visa where under the current process requiring them to be separated from their family for at least six months to a year at a minimum, they have chosen not to exercise the same right.

Who will benefit from this proposed rule?

Immediate relative petitions will benefit from the proposed rule: immediate relatives are as follows: a daughter or son less than twenty-one years of age of a United States citizen, a spouse of a U.S. citizen, or parent of a U.S. citizen.

May Lawful Permanent Resident petitions or Employment Based petitions benefit from this proposed rule?

No, only immediate relative petitions may benefit from the proposed rule. All other petitions will continue to require illegal immigrants to leave the United States before consideration of a waiver begins.

Is this proposed rule current law?

No, it is a proposed rule only at this time, but it is important to note it was presented in a Notice of Intent format by the USCIS and its chances of becoming a formally accepted process are excellent. Its formal adoption should be forthcoming in the next sixty to ninety days, if not sooner.