Bar for Overstay in the US Rules may Change for Spouses and Children of US Citizens

Today, U.S. Citizenship and Immigration Services (USCIS) announced a proposal that would change the application procedures for the spouses and children of U.S. citizens who are eligible for a US Green Card. The proposed rules would enable families to remain together during the process.   Under the rules as they are now, people who quality for US PR status are required to leave the US first in order to secure  their permanent resident status. However, as soon as they leave the US, applicants become barred from the US from re-entering for 3 or 10 years if they have been an overstay or unlawfully present in the U.S. for more than 180 days.

There is a waiver for this situation (family unity waiver) but the policy is that this waiver must be submitted from outside the US, a process which can take months. This is an obvious deterrent to applicants from applying for permanent residence who would otherwise be eligible.

The proposed rule intends to change this allowing for applicants to remain in the US during the process. This new rule will only be applicable to spouses and chidden of US citizens and not US permanent residents.

This “in-US processing” proposal would permit USCIS to grant a provisional waiver to applicants from within the US. However, applicants must still leave the U.S. before being granted final approval.

This new approach mirrors, somewhat procedures in Canada where “in Canada” applications for Permanent Residence can be filed for applicants not wishing to leave Canada, though overstays. It will remain to be seen how this new rule plays out for overstays in the US.

Michael Niren

About Michael Niren

Michael is a graduate of Osgoode Hall Law School in Toronto. He is a member of the Law Society of Upper Canada, the Canadian Bar Association’s Citizenship and Immigration Section and the Associate Member of the American Bar Association. Read more

The content and comments of this blog are not legal advise and and may not be accurate or complete. If you require legal advice, contact a licensed legal practitioner directly. If you post on this blog, you assume full responsibility for disclosing your identity to the public and VisaPlace nor its affiliates are not responsible for protecting your privacy nor your identity concerning your participation in our blog and you assume any risks in participating.

Customer Reviews

Great law firm with great staff. My lawyer Rania did a great job for my Canadian work permit and my daughters study permit. You are great in your work. And my Para Legal officer Alicea, you are just amazing. They did not rest until my job was promptly and properly done. Always there to answer my calls, reply my emails promptly. She tried her best and the results were amazing. I recommend visa place if you need the best immigration job. Many thanks to Rania and Alicea.

Charity Musaa month ago

Great firm on top of their game. Worked with us til the end to ensure my parents visa was approved and guided us along the way in a professional manor. Natalie is awesome. Majority of our communications were via email, but the responses were immediate. I would greatly recommend this firm. Thank you for all your hard work and help. My family and I do really appreciate it.

Daxesh Patel2 months ago

I am grateful for the legal services that I got from Sanaa and Alicea of Visa Place. I was impressed by their client centered approach. Their professionalism involved their hearts and heads to work on my case. I cannot compare the time they spent on it with the money I paid. All they wanted was a fine final document. I also liked their prompt communication. They are really passionate about what they do.

Theresie Nuwimanaa month ago