The new waiver deals with the most common problem for our paisanos in America. Practically all Filipinos who are now TNT arrived in the US with a nonimmigrant visa. Usually, it is a B2 or tourist visa. If they are admitted into the US, the most time they are given is 6 months. If they decide to stay in the US after that, they become visa overstays. Once they overstay, they start to accumulate unlawful presence in the US. If they overstay for more than 180 days, they will be barred from getting any kind of visa for 3 years. If they overstay their visas for more than 1 year, they are barred from getting any kind of visa for 10 years!
The practical effect of these unlawful presence bars is devastating. If, for example, the visa overstay finds an employer willing to sponsor him or her for a green card, he or she will not be able to get the green card in the U.S. because of being out of status or unlawfully present. The visa overstay will have to get the visa in the US embassy in Manila. Once he or she leaves the US, though, it triggers the unlawful presence bar of 3 or 10 years.
Originally, these bars could be waived if the visa applicant can show extreme hardship to a spouse or parent who is a US citizen. The problem was that the waiver application could not be filed until the visa interview in your home country; and no one knew how long the wait for a decision on the waiver application was going to be. Even worse, if the waiver application was denied, then the visa overstay was stuck abroad for 3 or 10 years. Thus, the uncertainty of the process made it very difficult. However, the unlawful presence bars did not affect Filipinos who had US citizen spouses, or were minor unmarried children of US citizen parents. This is because they entered the US with a visa, and so as immediate relatives of US citizens, they could get their green cards in the US – without having to go home. In such cases, it did not matter how long they were unlawfully present. But for those who entered without inspection, or simply crossed the border illegally, the waiver helped.
So even when US CIS made things better in 2013 by allowing the waiver application to be filed in the US, most Filipinos did not really benefit. For the other nationalities though, now they could wait in the US for the waiver application to be approved before they left for their home countries to get their immigrant visas. There would be no long separation of families. And if the waiver application is denied, at least they would not be stuck outside the US and away from their families for 3 or 10 years.
Come August 29, 2016, though, the US CIS rule on waiver applications will be expanded even more generously. Under this new rule, it is not only immediate relatives of US citizens who can file for a waiver application in the US. If the applicant can show extreme hardship to a spouse or parent who is either a US citizen or green-card holder, it will not matter if the basis for the underlying visa is an employment-based or family-based petition, special immigrant classification, or diversity lottery.
Going back to the Filipino visa overstay who was sponsored by an employer, he or she can now file a waiver for the unlawful presence bars if there is a USC or green-card spouse or parent who will suffer extreme hardship. And even if the visa overstay in the US has a final order of removal, he or she could still qualify for the expanded waiver. This new rule can be a game-changer for many Filipinos.