Question: What has been changed by the new waiver law that became effective on
Answer: Immigrant spouses and minor children who entered the United States without visas, under the new law, may apply in the United States for a Waiver prior to leaving the United States for the Immigrant visa interview abroad. This reform will considerably shorten the time foreign spouses and children will be separated from their United States spouses or parents and diminishes the likelihood of denial since the Immigration Service that is under the jurisdiction of the Courts is more likely to be reasonable as opposed to the Consulates. Because the Consulate is not subject to the rule of the Courts, they are traditionally more likely to be arbitrary and capricious. When these immigrants return to their countries, after the Pardons are granted in the United States, the Consulates have restricted powers to review the issue of these aliens entrance to the United States without visas.
Question: How does the Immigration Service decide which cases will be granted?
Answer: The United States citizen spouse or United States parent must prove extreme hardship if the immigrant spouse or child were not to be readmitted to the United States. This hardship must be shown to be above and beyond a normal separation. For example, proof of depression, anxiety, problems in sleeping, feelings of despair on the part of the United States citizen spouse or parent must be demonstrated in order to obtain the Pardon. Medical reports and psychological evaluations and physical and / or mental impairments will support the claim of extreme hardship.
Question: When may the Waiver application be made?
Answer: The immigrant applicant has to wait until first the alien relative petition is approved. This application usually takes from 4 to 6 months. Thereafter the Waiver may be applied for.
Question: Suppose a Waiver has already been denied by a Consulate? For example, if a Consulate has denied an applicant because he/she has a tattoo, and the Consul has deemed that the alien is a terrorist, can a waiver be applied for in the United States?
Answer: After a denial by a Consular officer, a Waiver application may be directed to the Immigration Services in the United States. The Immigration Service will hopefully decide the issue, requiring more evidence.
Question: If an applicant for an immigrant visa has already been scheduled for an interview at a Consulate, should the alien applicant attend the interview?
Answer: A no-show by the alien would result in a denial by the Consulate and/ or the State Department and as a result the alien relative petition would be denied as well.
Question: For how long does the grant of a Waiver remain valid?
Answer: The Waiver does not expire unless an alien relative petition is dismissed as in the instance that the Consulate suspects that the marriage is fraudulent. If the Consulate determines that fraud exists and cancels the alien relative petition, then the Waiver would be simultaneously voided.
Question: What will happen at the Consular interview?
Answer: The Consulate officer may weigh whether the marriage is in good faith. If the Consulate believes the marriage is in good faith, then the immigrant visa will be conferred at the Consular interview and then the alien immigrant may return to the United States as a permanent resident.
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