Not Qualified for Executive Action-Other Relief Available

By Attorneys Devin M. Connolly & Robert L. Reeves      En Español

On November 20, 2014, President Obama announced his plan to provide temporary relief for many undocumented immigrants living in the United States.  President Obama stated that millions of undocumented immigrants would benefit, but he also conceded that millions more would not benefit from his Executive Order. 

What should a person do if they are unable to benefit under President Obama’s plan?  Should they continue to wait patiently for Comprehensive Immigration Reform (“CIR”)?  At this time, waiting patiently may not be a very good option because it does not look good that CIR will be passed. 

Instead of waiting, it is advisable to explore options that may be available to you right now.  Even if you do not qualify under President Obama’s Executive Order, there are still numerous ways to obtain a green card immediately.  The following examples are just a few of the many ways to immediately obtain a green card.

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 options may be available to a person if they have been physically or emotionally abused.  The “Violence Against Women Act,” (“VAWA”) applies to both men and women and 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 “immigrant-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. 

Yet another option for those patiently waiting for CIR to pass is filing a family-based immigrant petition.  In conjunction with an approved immigrant visa petition is the possibility of obtaining a provisional waiver if the foreign citizen is not eligible for adjustment of status.

A provisional waiver helps intending immigrants who are unable to adjust but will invoke the 10-year unlawful presence bar upon leaving the United States to consular process.  Most waivers require that the immigrant who is consular processing submit the application for any waiver from outside the United States.  Provisional waivers allow the applicant to submit the request from inside the U.S. and wait for the decision here.  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.  And this provisional waiver was expanded by President Obama so that even more people will now qualify to apply.  

Waiting for potential reform is not productive for those who 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 other options available to you, even if you may not directly benefit from President Obama’s Executive Order.