Recently, the Obama administration announced a proposed change
to existing rules that will improve the lives of many American
families who are in limbo due to the 3 and 10 year bar which US
immigration law imposes on those who depart the country after
being “unlawfully present” (see article in our last newsletter).
Under the current law, a foreign national spouse of a US citizen
cannot apply for a green card from within the US if he or she
did not make a legal entry into the United States. To get a green
card, the foreign national must leave the US and if they have been
unlawfully present in the US for more than 180 days, will trigger a
3 year bar on re-entry at the time of departure. Unlawful presence
of 365 days or more triggers a 10 year bar on re-entry. While this
bar can be waived, in order to do this, the foreign national must
prove that his or her qualifying relative will suffer extreme hardship
due to his or her absence. These waivers take quite some time to
be processed and are very difficult to obtain. Historically they
could not be applied for prior to departure which would result
in the foreign national having to remain in their home country
for an extended period of time. Worse yet, if the waiver is denied,
the foreign national must wait out the 3 or 10 year inadmissibility
period overseas, separated from his or her US spouse and loved
ones. Consequently, few people, otherwise eligible for green card
processing based on marriage to a US citizen have taken the risk of
returning to their home country and have remained essentially in
limbo.
Under the new rule, the U.S. Citizenship and Immigration Services
(USCIS) will begin to process waiver applications for the 3 and 10
year bar here in the United States prior to the foreign national’s
departure. If the waiver is approved, the foreign national will still
have to leave the US to apply for the green card in their home
country, but this process will only take a few months and will
result in a quicker reunification of the foreign national with his
or her American family. If the waiver is not approved, the foreign
national will most likely not departure the US and will remain
with their family here, not able to legalize their status. With the
recent announced policy of prosecutorial discretion, it is less
likely that such individuals will be placed in removal proceedings
as Department of Homeland Security (DHS) is focusing its
removal and enforcement efforts on those foreign nationals who
are convicted criminals, represent threats to public safety, or are
suspected of fraud. If a foreign national is present in the US without
immigration status but has not otherwise violated the law, DHS
may choose not to initiate removal proceedings against him or
her. Although officially USCIS states that the new process will not
change existing standards it uses to adjudicate “extreme hardship”
waivers, there is a possibility that the standard may, in fact, become
less strict and result in a higher number of waiver approvals.
It is important to note that the “stateside” waiver process will only
be available to undocumented spouses and unmarried children
under age 21 of US citizens, but will not extend to spouses or
children of green card holders, children 21 and older, married
children of any age, or siblings of US citizens. These categories
of unlawfully present foreign nationals will still have to apply for
the waiver abroad unless they qualify through a prior amnesty
program.
When the new rule comes into effect in a few months, it will allow
many undocumented foreign nationals to come out of the shadows
and legalize their status in the US, to work lawfully and pay taxes,
and to avoid lengthy periods of separation from their US citizen
spouses and children. If you or someone you know is married to
an undocumented foreign national who would like to legalize their
status in the US, now might be a good time for them to come see
us for a consultation to evaluate how this procedural change might
benefit them.
