The proposed ‘hardship waiver’ change: How it would apply in real life

Originally published by Southern California Public Radio, Multi-American; site curator is KPCC’s Leslie Berestein Rojas

proposed administrative tweak announced last week by U.S. Citizenship and Immigration Services could encourage many families of mixed immigration status who have found it impossible to solve their immigration problems to finally come out of the shadows.

The proposal concerns a longstanding rule affecting the undocumented spouses and children of U.S. citizens, many of whom are unable to adjust their status in the United States. They are, however, allowed return to their native countries in order to apply for a green card through what’s referred to as consular processing, applying at U.S. consulates such as the one in Ciudad Juarez.

The catch is that once they leave, depending on how long they’ve been in the U.S. illegally, they can be barred from returning for up to a decade. If they can prove the absence will cause “extreme hardship” to a U.S. citizen spouse, a waiver may be obtained to let them return sooner. But the waivers aren’t easy to obtain and the processing time is lengthy, from six months to easily two years depending on the country. If the waiver is not granted, they can be stranded abroad long-term. The risk of indefinite separation is so great that many families don’t risk it.

The proposed change, published Friday in the Federal Register, would streamline the waiver process, allowing people to apply on U.S. soil. The change wouldn’t necessarily make these waivers easier to obtain, but at least those seeking visas abroad would know before they go that they can return within a reasonable time, which USCIS says would be no more than a few weeks.

If the change goes through, how would it apply in real life among mixed-status families? Immigration attorney David Leopold, former president of the American Immigration Lawyers Association, explains its practical applications and presents a case study in an informative Q&A.

M-A: Who would this proposed change help, and how?

Leopold: Under U.S. immigration law, a foreign national who remains in the U.S. unlawfully for more than 6 months, after entering illegally or overstaying a visa, is barred from readmission to the U.S. once he or she leaves. The law also does not generally permit noncitizens who have entered illegally from adjusting their status to lawful permanent residence (green card), even if they are married to a U.S. citizen.

This puts many would-be legal immigrants into a Catch-22: The noncitizen may be eligible for a green card because of the marriage but, to apply for it, he or she must leave the U.S. to appear at the U.S. embassy in his or her home country. Once the noncitizen departs the U.S., he or she is then barred from returning for up to 10 years unless he or she can obtain a family unity waiver, which requires a showing that the applicant’s U.S. citizen spouse will suffer extreme hardship.

Currently, applicants must apply for the family unity waiver abroad. The process can take months, even years. In the meantime, the family is separated and the applicant may be stuck waiting in a dangerous place, such as Ciudad Juarez, Mexico. The proposed procedural tweak will allow the applicant to apply for the waiver in the U.S. Once the waiver is granted, the applicant may then proceed abroad, apply for their immigrant visa, and return quickly to the U.S. and their family as a legal immigrant. This proposed rule does not change the law in any way. But by allowing for stateside waiver processing it protects American families and promotes legal immigration.

The processing change would apply to spouses and children of U.S. citizens. Practically speaking, though, it applies mainly to spouses because children don’t accrue unlawful presence until they each the age of 18. However, the law defines a child as an unmarried person under 21. Therefore, there will be children who will need to apply for the family unity waiver abroad, just not as many.

M-A: What is the criteria for “extreme hardship? How difficult is it to obtain the waiver, and realistically, how long does it take? 

Leopold: There are no set criteria for extreme hardship. It is a question of circumstances which involves a variety of factors, including economic hardship, emotional distress, physical hardship, etc.

For example, extreme hardship may be present where the U.S. citizen spouse suffers from a debilitating disease which can only be treated in the U.S., or the foreign spouse is the only caretaker or source of financial support. Each case is evaluated on its own facts. The law limits the showing of hardship in these circumstances to the spouse or parent of the immigrant; hardship to U.S. citizen children is not included in the law.

And there are no guarantees. Unless the applicant proves extreme hardship, which is something more than the pain of separation, the waiver will be denied.

In Mexico (where the majority of these applications are filed), the waiver process itself can take as long as 18 months to process.

M-A: So let’s look at a case study: U.S. citizen wife, Mexican citizen husband, two U.S. citizen kids. The husband has been here illegally more than a year and is subject to the readmission penalty. How would it work under existing rules, and how would it work under the proposed rules?

Leopold: Since he entered illegally, the husband cannot apply for his green card in the U.S., even though he is married to a U.S. citizen and the couple has two U.S. citizen children.

To apply for his immigrant visa, the husband will have to go to the U.S. consulate in Ciudad Juarez, Mexico, which is considered by many to be the most dangerous city in the world not in a declared war zone. Once he departs the U.S.- he will be subject to a 10 year bar because he has been in the U.S. unlawfully for more than a year.

To get his immigrant visa, he will have to apply for a family unity waiver and show his U.S. citizen wife will suffer extreme hardship if he cannot return to his family in the U.S.  As stated, proving hardship will depend on his U.S. citizen wife’s circumstances.

Some of the factors that may apply are the state of her physical and mental health, her profession, the family’s particular economic circumstances, her family ties in the U.S., country conditions in Mexico, cultural considerations, and her Spanish language ability. Remember, hardship to the children doesn’t legally matter – but to the extent that hardship to the children may cause their U.S. citizen mother anxiety and pain or other hardship, it may be relevant.

The waiver process will likely take more than a year, during which time the husband will remain in Mexico, away from his family.

Under the proposed rule change, the husband will be able to apply for the family unity waiver in the U.S., before he departs to apply for his immigrant visa in Mexico. Therefore, once he gets to the U.S. consulate in Ciudad Juarez, his waiver will already have been granted, and he will be able to return to the U.S. (and his family) as a lawful permanent resident in a relatively short period of time.

M-A: What happens now if the waiver isn’t approved? And what could happen in the future if those who apply for them here in the U.S. are denied?

Leopold: There are never any guarantees when applying for an immigration benefit. And when it comes to family unity waivers, anyone who has been unlawfully present in the U.S. faces the prospect of being barred for up to 10 years, period.

That is the law, and the proposed procedural tweak doesn’t change that. Under the current procedure, if a waiver is denied, the applicant waiting abroad faces the very real prospect of a decade of separation from his spouse and children in the U.S.

Under the proposed rule adjustment, if the state-side family unity waiver is denied, the applicant will be subject to the enforcement provisions of the law, as is any green card applicant whose waiver has been denied.

It is important to understand that the processing of (other) stateside waivers is nothing new. The reason the unlawful presence or family unity waivers are done overseas is because a person who has neither been admitted or paroled into the U.S. cannot adjust in the U.S. What is new is that these family unity waivers of the 3 and 10 year bars would be decided before applicants depart the U.S., avoiding the overseas processing delays, separation, and, in many cases, danger involved with waiting abroad.

It’s important to understand that this proposed rule is just that, proposed. Nothing has changed, so immigrants and their families are well advised to seek the advice of a licensed immigration lawyer before making any decisions about visa applications, especially where the immigrant will need to depart the U.S. and process his or her application at a U.S. embassy abroad.

Federal officials said last week their the goal is to implement the rule change within a year. Posting the proposal in the Federal Register kicked off the federal rule-making process, which dictates a public comment period after the proposal is posted, sometimes with hearings. However, the agency needn’t heed the comments to make the change.

About David Leopold
Past President American Immigration Lawyers Association (AILA), In-the-Trenches practicing immigration Attorney, Blogger, Activist, Photographer, Educator, World Traveler. All opinions are my own.

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