Contributed by Attorney Carlos Duque, practicing in the areas of deportation defense including waivers

The Obama Administration announced a new immigration policy last week that many in the media are calling an "amnesty" or "legalization," which will allow certain immigrants without legal status to now obtain U.S. residency. The new policy is very narrowly focused and only applies to certain immigrants applying for Green Cards.

For background, immigration laws do not allow some immigrants to adjust their status to a Green Card inside the U.S. due to technical "status" issues. For those individuals, current law requires that they leave the U.S. and process their residency case outside at a U.S. Embassy in their home country. This creates a problem for immigrants who have stayed in the U.S. unlawfully for six months or more, since once an immigrant leaves the U.S., the law automatically imposes a bar to re-entry. Immigrants who leave the U.S. after overstaying for six months or more cannot return to the U.S. for three years, and those who overstay for more than one year cannot return for 10 years. However, the law did allow such immigrants who left the U.S. to file a "waiver application" with the U.S. Embassy to waive the bar. This "waiver application" involves a long processing time. If forgiveness is approved the alien will receive permanent residence, if it is denied the alien will have to wait three to 10 years in their country of origin.

Until now, this has created a dilemma for many immigrants: stay in the U.S. without the possibility of legalizing and subject to deportation, or go to their home country risking not coming back for many years.

Soon, under the new Obama policy, such immigrants will be able to file the "waiver application" in the U.S. and wait for approval, before having to risk leaving the U.S. This provides two advantages:

first, if the waiver is pre-approved, processing time for U.S. residency through the U.S. Embassy abroad is significantly reduced, and

second, if the waiver is denied in the U.S., the immigrant does not risk leaving the U.S. and can continue to remain in the U.S. and seek other alternatives to be legalized.

The proposed change benefits immigrants who are spouses or parents of U.S. citizens, who are the beneficiaries of an approved I-130 petition and:

1. entered the U.S. illegally, including those with TPS

2. have crewmen visas

3. entered with a K-visa (fiancé or fiancée) visa and are applying for residency based on marriage to a person other than the U.S. citizen who sponsored them for the K-1 visa

4. may also benefit immigrants with a deportation order.

The process takes about six months to be approved and generally does not require an interview before an immigration officer in the U.S.

IMMIGRATION Q&A

Question: Four years ago I got my Green Card through a former husband who was an American. Now I'm a U.S. citizen and just got divorced and I want to sponsor my fiancée for his Green Card. I want to know if there will be a problem to get married and file for his immigration papers because my divorce just came through in December?

Answer: That's a great question and very important for readers to understand. Immigration marriage cases in general are always highly "suspect," due to the high incidence of fraud. Therefore, the USCIS requires that an individual who obtained U.S. residency through marriage waits at least five years from the date of obtaining a Green Card before being eligible to sponsor a subsequent spouse for residency. There are exceptions, for instance if a U.S. spouse has died. Even cases where a U.S. citizen sponsors a foreign spouse after five years can be subject to extra scrutiny by the USCIS to determine if the first marriage was entered into solely to obtain immigration benefits. Similarly, couples who re-marry shortly after divorcing a former spouse are also much more likely to receive difficulty when applying for residency. Therefore, the best approach is to allow as much time as possible to pass after divorcing, before remarriage to avoid any additional difficulties. You can contact our office to obtain more information about special issues in marriage immigration cases.

You also can learn more about immigration issues by visiting our website at: www.Immigratetoday.com.