On April 2, 2012, the U.S. Citizenship and Immigration Service proposed a new regulation that will permit non-citizens to apply for a waiver for inadmissibility due to unlawful presence from within the United States. One of the dirtiest secrets of our immigration laws is that not everyone who is married to a U.S. citizen can get a green card from within the United States. The process of getting a green card within the United States is called adjustment of status. If you entered the United States illegally, then you can only get a green card through marriage, if someone filed a visa petition or labor certification for you prior to April 30, 2001.
Another dirty secret of our immigration laws is that once you have lived illegally in the United States for a year or more, if you leave the United States, you are barred from returning for 1o years. This is referred to as the 10 year bar. There is a waiver of the 10 year bar that requires the applicant to show extreme hardship to their family members. Currently, this waiver can only be applied for at a U.S. consulate office; it cannot be applied for within the United States. Obviously, under the current rules, most individuals that are in the United States unlawfully would be unwilling to risk leaving the U.S. to get a green card through consular processing for fear that their waiver would not be approved or that it would take too long for the waiver to be approved.
Under this proposed rule, someone who entered the United States illegally and is subject to the 10 year bar may apply for the waiver while they are in the United States. Under the proposed rule, if the waiver is granted, they could then leave the United States and get their green card at the U.S. consulate office. Unfortunately, this is only a proposed rule. It has yet to go into effect. By law, a proposed rule is not final until the public has had the opportunity to comment on the rule.