Bustos Law Firm

Obama Administration Seeks Common Sense Change in Immigration Law

In Federal Law, Immigration on March 2, 2012 at 9:18 AM

United States immigration laws currently allow immigrant spouses and children of U.S. Citizens and Legal Permanent Residents to apply for a green card (legal permanent residency) even if they initially entered the country without inspection. However, the law currently requires most of these folks to apply for their green card from their country of origin.

The Problem

The catch, however, is that in most cases leaving the United States, after entering without inspection, triggers a 10-year ban that Congress enacted back in 1996 — even for those individuals who are already fully eligible to become legal permanent residents.

The Solution

To remedy this catch-22 situation, Congress crafted a series of waivers for the laundry list of violations that may lead to a finding of inadmissibility under section 212(a)(9)(A) or (C) of the Immigration and Nationality Act (INA).

The most commonly utilized of these waivers is the I-601 Unlawful Presence Waiver. To qualify for this waiver, an applicant must have a U.S. Citizen or Legal Permanent Resident spouse, or parent, that will suffer “extreme hardship” if the applicant cannot return to the United States, or if they have to relocate outside the U.S. to be with the applicant.

“Extreme hardship” is vaguely defined as greater than the normal hardship a qualifying relative can be expected to experience if the intended immigrant is denied admission. An example of extreme hardship is being unable to provide care for a disabled family member living in the United States.

It is important to prove BOTH why the qualifying relative cannot move abroad AND why the qualifying relative cannot simply live in the U.S. without the intended immigrant. It is not enough to merely assert that the qualifying relative will miss the immigrant’s company, as this is considered a “normal” hardship, not extreme hardship.

Oddly enough, and unfortunately,  the applicant’s children, of any age, are not considered qualifying relatives for the purpose of the I-601 Waiver. Thus, a waiver cannot be granted solely on the basis of your relationship to your U.S. Citizen or Legal Permanent Resident child. However, documenting that you have a U.S. Citizen or Legal Permanent Resident child will help you establish extreme hardship with respect to your spouse or parent; as any hardship that befalls your child will likely also impose a hardship upon your spouse. Also, applicants with more than one unlawful entry into the United States after April 1, 1997 may not be eligible for this waiver.

Currently, the intending immigrant must submit their waiver packet at the U.S. Embassy or Consulate abroad, where it can take several months and even years for United States Citizenship and Immigration Services  (USCIS) to make a decision on the waiver — and all of this happens while the family remains separated from each other.  Likewise, sometimes waivers are not approved at all, and immigrants end up becoming permanently separated from their American families. As a result, many couples who need this waiver choose to lay low in the United States, rather than go through the waiver process and risk facing the 10 year ban.

A Much Better Solution

However, USCIS is now proposing a small tweak in the waiver process for the spouses and children of U.S. Citizens (not Legal Permanent Residents) who are seeking waivers only for their own unlawful presence.  This proposed rule (which is currently only a “notice of intent” to publish a proposed rule) would provide eligible immigrants with “provisional waivers” in the United States, before leaving abroad to pick up a green card in their country of origin. Leaving with the waiver in hand will allow these immigrants to depart the U.S. knowing that they will almost certainly be allowed to return to the U.S. to be with their families.

It is important to remember that the provisional waiver rule WILL NOT allow applicants to receive their green cards in the U.S.; it is only the provisional waiver itself that they will receive in the U.S.  Applicants will still have to travel abroad for the issuance of the immigrant visa/green card by the U.S. consulate in their home country.  However, USCIS is seeking to cut down on the amount of time immigrants will have to wait abroad to pick up their green cards, from the current wait time of several months, to a much more manageable wait time of about two weeks.

The Politics of Immigration Law

It should come as no surprise that this recent move was greeted with broad praise from immigration attorneys, as well as immigrant and Latino groups, which have recently been critical of the high rate of deportations under President Obama. And, with the 2012 Presidential Election on the horizon, and President Obama needing to shore up lagging support among Latinos, the timing of the announcement from the White House was clearly political. So, as to be expected, a few anti-immigrant groups have cried foul because this particular tweak in the law is one of a number of recent measures by the Obama administration that do not require the approval of Congress.

However, the fact of the matter is that those who would criticize this measure have little ground to stand on because the proposed rule change does not change any laws, nor does it provide any new benefits for undocumented immigrants. What it does, however, is improve compliance with current law, as waivers were originally designed to ease the effects of contradictory or outmoded statutes on immigrant communities, and to prevent the hardship of family separation.

Also, it is important to note that not only has this proposed rule been in the planning stages for years, but it has also been recommended by multiple non-partisan governmental and non-governmental organizations. Accordingly, assertions that it is nothing more than election year politics by the President are unfounded.

How Many Waivers Were Approved Last Year?

In Fiscal Year 2011, USCIS received 23,262 I-601 Waiver applications, and approved 17,790 of them… roughly a 76 percent approval rate. According to USCIS, however, the approval rate in Ciudad Juarez, Mexico last year was even higher — closer to 90 percent.

 What Happens if My Wavier is Denied?

Individuals whose waivers are denied would be subject to USCIS guidance and law enforcement priorities for issuing Notices to Appear (NTA) in immigration court. For example, convicted criminals, public safety threats, and those suspected of fraud, among others, will receive NTAs to appear in Immigration Court for removal proceedings.

Anyone else who is denied a I-601 Waiver will have the choice to either abandon the process (while still remaining in the United States) or appeal the denial — while staying in the United States for the two or three years it typically takes to adjudicate the appeal.

Of course, the I-601 Waiver does not guarantee admission into the United States. The U.S. Consulate can always, after the initial consular interview, discover new grounds of inadmissibility, which may or may not, have an applicable waiver that can cure the inadmissibility.

What’s the Bottom Line?

The bottom line is that those who abandon the waiver process, or who have their waiver appeals denied, if not priority cases for ICE, will be back to square one—undocumented and married to U.S. Citizens. But at least they will be with their families in the United States, rather than separated from them, or forced to move under duress.

Can I Apply For A Waiver Now?

Short Answer: No.

Long Answer: It’s important to note that the provisional waiver system is not yet in effect, and won’t be in effect until USCIS publishes a final rule in the Federal Register that specifies the effective date the new law will go into effect. Some reports indicate that it may take as long as up to a year before the rule goes into effect. Therefore, DO NOT send in an application requesting a provisional waiver at this time, as USCIS will not accept these applications until a final administrative rule implementing the new law goes into effect.

Also, you need to be aware that some unauthorized practitioners of immigration law, as well as some unscrupulous immigration attorneys, may wrongly claim that they can currently file a provisional I-601 Waiver on your behalf.

Be assured, they cannot.

So, it goes without saying, or it should go without saying, that if you already have an immigrant visa interview scheduled with the U.S. Department of State, you still need to attend that interview. The State Department may cancel your immigrant visa registration if you fail to appear for your scheduled interview.


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