A proposal by President Barack Obama would expand the number of illegal aliens who are permitted to remain in the United States while applying for legal status. Federal law currently requires aliens who entered the country illegally to leave the United States and apply for an immigrant visa at the U.S. embassy or consulate in their home country. Individuals who were in the United States illegally for more than six months are also required to remain outside the United States for a period of three or 10 years.

Under a program created by President Obama in 2013, illegal aliens who are married to U.S. citizens, the children U.S. citizens or the parents of U.S. citizens can remain in the country if their three or 10-year absence causes an “extreme hardship” to the relative who is a U.S. citizen. To qualify, petitioners have to submit a 601(a) Application for Provisional Unlawful Presence Waiver after filing their green card application and before leaving the United States for an embassy or consulate interview in the alien’s native country. A Chicago immigration attorney can help determine whether aliens are eligible for the waiver.

The new proposal by the U.S. Department of Homeland Security would expand eligibility and allow more aliens to remain in the United States while their visa applications are pending. The Expansion of Provisional Unlawful Presence Waivers of Inadmissibility proposal specifically states:

Under the proposed rule, [the U.S. Citizenship and Immigration Service] USCIS may grant a provisional waiver to foreign nationals if they are statutorily eligible for an immigrant visa and for a waiver of inadmissibility based on unlawful presence. The proposed rule also would expand who may be considered a qualifying relative for purposes of the extreme hardship determination to include lawful permanent resident spouses and parents.

Family-sponsored immigrants, employment-based immigrants and Diversity Visa program selectees (as well as their spouses and children) could all be eligible for 601(a) waivers under the proposed rule.

The USCIS is currently accepting comments about the proposed rule. U.S. citizens and aliens who wish to comment on the proposal can contact their Chicago immigration attorney for more information about the commenting and rulemaking process.

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