By Attorneys Devin M. Connolly and Nancy E. Miller
The Supreme Court of the U.S. recently announced that they would not rehear the case involving President Obama’s attempts to implement Deferred Action for Parents of Americans (DAPA) and Deferred Action for Childhood Arrivals (DACA). This denial means that the lower court’s preliminary injunction will continue to stand and DAPA and DACA will be prevented from going into effect. While this is a setback to millions of undocumented immigrants residing in the U.S., it is also an opportunity to explore other potential options.
The question now facing millions of undocumented immigrants is what to do since DAPA and expanded DACA are no longer options. Should they wait for Comprehensive Immigration Reform (“CIR”)? While many people would be thrilled with CIR, the reality is that it is not likely to pass in the near future. Therefore, instead of waiting, it is advisable to explore options that may be available to you right now. There may be alternative ways of obtaining a green card right now!
One option available to undocumented immigrants is Cancellation of Removal for Non-Permanent Residents (“Cancellation”). Cancellation allows qualified individuals to obtain a green card if they have lived in the U.S. for at least ten years, have good moral character and can show that their U.S. citizen, or Lawful Permanent Resident parent, spouse or child would suffer exceptional and extremely unusual hardship if the applicant were forced to leave the United States. Applicants are eligible to obtain employment authorization as soon as their application is filed. With work authorization, one may apply for a social security number, work legally and even obtain a state-issued driver’s license.
Another option that may be available is permanent resident status through the “Violence Against Women Act,” (“VAWA”). VAWA applies to both men and women and is available to victims of physical or emotional abuse. It allows certain spouses, children, and parents of U.S. citizens and permanent residents to file a petition for themselves without any assistance from their relative. This self-petition allows victims to immediately seek both safety and independence from their abuser. And their abuser will not be notified about the self-petition.
The most difficult task facing a self-petitioner under VAWA is typically establishing that they have suffered “extreme cruelty” by their family member. “Extreme cruelty” includes acts of physical violence, but it also includes many other types of abuse as well. In fact, the U.S. Citizenship and Immigration Service (“USCIS”) may approve a self-petition based solely on psychological and emotional abuse. The USCIS will also consider what has been deemed “immigration-related” abuse. Immigration-related abuse may include acts such as threatening to have a family member deported if they do not act in conformity with the abuser’s wishes, not filing necessary papers on behalf of a family member despite repeated promises to do so, or even calling the U.S. Immigration and Customs Enforcement to report a family member’s unlawful presence in the U.S.
Another potential option for undocumented immigrants is to seek a Provisional Waiver. A provisional waiver helps intending immigrants who are ineligible for adjustment of status and who will incur a 3 or 10-year unlawful presence bar upon leaving the United States to consular process. Eligibility for a Provisional Waiver was recently expanded to also include beneficiaries of employment-based petitions, petitions from their parents or siblings, etc.
A Provisional Waiver would allow the applicant to submit their request for a waiver before they ever leave the U.S. They are also permitted to remain in the U.S. until their waiver has been approved. Once approved, the applicant departs for their immigrant visa interview at a U.S. embassy or consulate abroad. This pre-approved waiver avoids lengthy separation of family members, as the applicant would hopefully be able to return to the U.S. within a matter of days.
Waiting for potential comprehensive immigration reform may be the only option for some people. However, others may already have a viable path to legal status in the U.S. After all, more than one million individuals obtain legal permanent resident status each year. It is important to remember that there are potentially many options currently available to you. To find out for sure, consult a knowledgeable and experienced immigration attorney to find out about your options.