Great news from the Obama Administration today! It announced a groundbreaking proposal to allow immigrants to apply for an unlawful presence provisional waiver in the US before going abroad to apply for an immigrant visa. Thousands of immigrants and their families are going to be helped by this as well as the US economy.
The current waiver process for unlawful presence (more on this below) needlessly disrupts family lives. The proposal is a great step in the direction of ameliorating the unduly harsh emotional and financial disruption caused by current immigration procedures. The change in how unlawful presence waivers are processed, for now, only applies to the parent, spouse or child of a US citizen immigrating on an immediate relative petition. Employment-based and “preference” family-based are not included.
Unlawful presence creates a terrible Catch 22 situation for out of status immigrants in the US. Under current immigration law, an immigrant who has accrued unlawful status in the United States is generally ineligible to obtain a green card domestically. To obtain lawful status, the immigrant must depart the United States and apply for a visa at a US embassy or consulate in his home country. If this immigrant’s unlawful presence in the United States has been greater than 180 days, his departure triggers a three-year-bar from returning to the United States. If the unlawful presence is greater than one year prior to the departure, the immigrant triggers a 10-year-bar from returning to the United States. Immigration law does allow certain immigrants to obtain a waiver of this bar if they can demonstrate extreme hardship to a qualifying relative in the United States who is either a US citizen or lawful permanent resident. Only an immigrant with either US citizen or permanent resident parents or spouse are eligible to apply for this waiver.
Under the current waiver process, an immigrant must depart the United States, thus triggering either the 3 or 10 year bar. He must then apply for and be denied the visa by the US Consulate because of the bar. Next he must apply for a waiver of the bar before the USCIS before finally re-applying for the visa at the US Consulate with an approved waiver. This process often takes several months to several years. This person is stuck outside of the United States the entire time! And, the family in the United States is separated from the loved one who is stuck overseas.
The US family has to endure emotional anguish for the entire separation. In addition, dual income families are typically reduced to a single income. What exacerbates matters is that during the separation, the US spouse must not only support a US household, but, must also send money overseas to support the immigrant spouse. This is because in the vast majority of cases, the immigrant spouse is stuck waiting in a country that is dangerous and has no employment opportunities. In the harshest of cases, where the immigrant spouse was the sole breadwinner for the family, the US family is left without any means of financial support. This is an enormous financial drain on the US economy when multiplied across the thousands of families subjected to the current immigration process.
Under the proposal, the undocumented spouses and children of US citizens will be able to apply for a provisional waiver while in the United States. They must still demonstrate extreme hardship to a qualifying relative, but, would not have to wait separated from loved ones for extended periods of time outside of the United States. There would be little or no disruption to their lives.
In addition, applying for a waiver domestically allows for uniformity in the decision making process. Currently, results are significantly different in waiver adjudications by the different USCIS offices throughout the world. This is due to foreign field offices apply differing standards. For example, a waiver case that has a strong chance of being approved in Ciudad Juárez, would likely be denied in another jurisdiction. The Administration envisions significantly faster processing of these provisional waivers by keeping the process centrally located in the United States. The goals are for waiver to be decided within a few weeks.
The provisional waiver will be limited to the spouses, children, or parents of US citizens who are immigrating as an immediate relative. The provisional waiver will also be limited to those only requiring a waiver for the 3 or 10 year bar. If one needs a waiver for an immigration misrepresentation, the new process would not be available. Once the provisional waiver is granted, the immigrant is then free to travel to the home country to apply before the US Consulate for an immigrant visa and return to the US. This proposed rule is a smart way to efficiently and fairly administer the waiver program while remaining faithful to Congress’ priority that immigration law focus on family unification of US citizens. Important financial resources will also remain in the United States and families will be spared unnecessary hardship.