New Waiver Policy would promote Family Unity

[Used to be broken 147]

http://shusterman.com/newsletterusimmigrationfebruary2012.html#2

A proposal was put forth in January by the USCIS which would allow thousands of spouses of U.S. citizens to come out of the shadows and apply for green cards.

This is as it should be since the stated purpose of our immigration laws is to promote family unity and spouses of U.S. citizens are usually given special preference in regularizing their status.

Despite this general rule, many thousands of families in the U.S. consist of one spouse who is a U.S. citizen and another who is an illegal alien. Worse yet, our laws require many spouses of U.S. citizens to leave the U.S. and travel abroad in order to apply for green cards. As a result, many of these spouses are forced to remain separated from their families for a lengthy period, from a few months to over 10 years.

Now, the Obama Administration is taking steps to halt this terrible travesty.

Before we explain the new policy proposal, it is best to recount the reason for the present state of the law.

In 1996, Congress passed and President Clinton signed the “Illegal Immigration Reform and Immigrant Responsibility Act” (IIRIRA). This law sought to punish persons who were “unlawfully present” in the U.S. by making it difficult for them to receive immigration benefits.

Here, one example is worth a thousand words.

Let’s say that a Mexican couple unlawfully entered the U.S. with their 3 children back in the 1980s. In 2005, their son Marty, then 21 years of age, married Barbara, a U.S. citizen. Marty and Barbara have been married for 6 years, and have two children. Yet, Marty is still unlawfully in the U.S. Why is that?

If Barbara sponsors him for a green card, he will have to apply at the U.S. Consulate in Ciudad Juarez, Mexico. Barbara hesitates to do this because Ciudad Juarez is a very dangerous place. More than one applicant for immigration benefits has been murdered or severely injured there. There is, however, another compelling reason why Barbara does not want her husband to go to Juarez.

Because Marty has been unlawfully present in the U.S. since his parents brought him here, the law bars him from returning to the U.S. for a period of 10 years. There is a way to avoid this, but it is neither quick nor certain.

If Marty can demonstrate that Barbara would suffer “extreme hardship” if he were not allowed to return to the U.S. for 10 years, then he can apply to obtain a “form I-601 waiver” from this bar. However, applying for a waiver is very tricky since only hardship to Barbara matters under the law. Hardship to Marty or even hardship to their children simply does not count.

Also, Marty must remain outside the U.S. while his application is pending, a difficult proposition since Marty is the sole breadwinner of the family. It may take the government several months or up to a year to process Marty’s waiver. If the waiver is denied, which occurs about half the time, Marty can appeal, but that is a two-year process. Marty must still remain outside the U.S. the entire time.

Because of this law, thousands of families have been separated for years. Some have had to go on welfare or have had their homes foreclosed when they could no longer make payments on their mortgage. As a result, many U.S. spouses in this situation simply choose not to sponsor their foreign-born spouses for green cards. The spouses simply remain in the U.S. with their families in unlawful status.

Do these same harsh penalties apply to spouses of U.S. citizens who enter the U.S. from Europe or Japan? Most of these spouses enter the U.S. lawfully as visitors or students, and many overstay their visas and remain in the U.S. illegally for months or years before marrying U.S. citizens. Yet, the law permits them to obtain their green cards without having to leave the U.S. or even requiring them to obtain a waiver. They may be illegal, but the severe penalties mentioned above mostly fall on spouses from south of the border.

So what is the new policy that was recently proposed by the USCIS and how will it promote family unity?

Is the government going to treat illegal Mexican spouses of U.S. citizens the same as illegal European spouses, and permit them to get their green cards in the U.S.? No. Is the government going to dispense with the waiver requirement or ease the standards for what is considered extreme hardship? Absolutely not.

What the Obama Administration is proposing is something much more modest. Nothing in the new proposal will change the law. It simply provides that before the green card appointment takes place outside the U.S., the waiver application may be submitted in the U.S. and the family can remain intact while waiting for the result.

Furthermore, the proposed regulation would limit the applicability of the new waiver process in 3 additional ways:

1. Only immediate relatives of U.S. citizens may apply;

2. Only unlawful presence waivers are included; and

3. The extreme hardship must be to qualifying relatives who are U.S. citizens.

Because lengthy family separations are avoided, the new policy would enable more U.S. citizens to apply to legalize their spouses, and would lower the number of illegal aliens in the U.S., something that everyone claims to be in favor of.

However, Representative Lamar Smith (R-TX), the principal author of IIRIRA, who currently serves as the Chairman of the House Judiciary Committee, characterized the proposal as an “abuse of administrative powers”.

We disagree. Still, we caution families to remember that the new policy is only at the proposal stage, and it may be many months before it is fully implemented. This is definitely a good time to start preparing your I-601 waiver application!

[wshc 46]

There are some seriously flawed statements in this article, and he is an immigration lawyer. He implies discrimination against illegal Mexican immigrants compared to European and Japanese spouses. He clearly states that these spouses enter the U.S. Lawfully at one time and then overstay their visas. Yes, the recent practice of USCIS is to allow those spouses to adjust status while remaining in the country, but that is just currently policy not law and is subject to change at any time.

He then states,

“Is the government going to treat illegal Mexican spouses of U.S. citizens the same as illegal European spouses, and permit them to get their green cards in the U.S.? No. Is the government going to dispense with the waiver requirement or ease the standards for what is considered extreme hardship? Absolutely not.”

He is comparing someone that entered the country legally to someone that did not. Although the European or Japanese spouse may be in a condition of illegal presence, they have gone through inspection. The illegal did not. I don’t have facts to back this up, but I am sure that if a Mexican national entered this country legally, either with some form of visa or whatever, then overstayed their visa, then married a USC that Mexican would be allowed to adjust status just as the European. Unless that is not the case, this lawyer has no reason to use the “race”, or “just because they are brown” card. This is outrages for immigration lawyer to imply such a thing and sounds like a liberal talking point.

So here is something for him to think about. It is a long story, but basically USCIS made a mistake and because of their error my European wife of 27 years was allegedly illegally present for 10 days over the grace period. Upon reentry to the US she was denied entry in to the US and now we have been separated and waiting over 18 months for here Visa application and I-601 waiver. The Frankfurt consulate tells us that it could be up to six months longer, but when you check the official statistics for the number of waivers received at the Frankfurt Embassy you see that they receive 4 to 6 a month. Why can they not handle such a small number of waivers?

So you want to complain about the mistreatment of ILLEGAL immigrants. Ciudad Juarez receives upwards of 2000 waiver requests a month. There is actually an official program to complete a very large majority of those in fewer than three days, and others in less than three months. But the resources that Frankfurt needs to do 6 a month are not made available.

The new rule change is a good thing and unfortunately it will not help us. But don’t think that the Obama administration did this for family unity. If they were concerned about family unity why didn’t they allow separated families to be reunited while the paperwork is being processed? This is purely political to pander to the Hispanic vote, and this article from an immigration lawyer is very short on accurate statements.

[momof1 205]

Entry without inspection doesn't cause a bar on re-entry. Unlawful presence over 180 days, whether inspected or not, causes a bar. So, there is technically no difference between "illegals" and Europeans who overstay. If you want to use that word, your wife was an illegal too. I've been through the waiver process due to my spouses's overstay so pls don't think I'm judging you. However, under the law an illegal Mexican and an illegal European have the same penalty after overstay and departure from the US...no difference.

[momof1 205]

WSHC, I aldo wanted to echo your frustration about caseloads. The pilot program is essentially dead in CDJ at the moment. I've complained for years why CDJ can process 20,000 plus waivers a year while Rome, where our case was decided, did a couple hundred at most. The truth is that most people in CDJ are simple unlawful presence while most other countries involve CIMT or misrep making cases exponentially harder.

As hard as it seems right now, I can tell you that it will get better. It will end and your lives will move forward. I can sit here now, 2.5 yrs since my husband's return and almost 5 yrs since his deportation, and say that we're all okay. It doesn't hurt as much as it did and I'm letting go of all the frustration and anger from those years. I wish for you the same peace and comfort one day soon.

Edited February 4, 2012 by momof1

[wshc 46]

Entry without inspection doesn't cause a bar on re-entry. Unlawful presence over 180 days, whether inspected or not, causes a bar. So, there is technically no difference between "illegals" and Europeans who overstay. If you want to use that word, your wife was an illegal too. I've been through the waiver process due to my spouses's overstay so pls don't think I'm judging you. However, under the law an illegal Mexican and an illegal European have the same penalty after overstay and departure from the US...no difference.

Yes, in our case we did leave the country and attempted to reentry, triggering the bar, (our mistake cause by their mistake). But in the cases this author, an Immigration attorney writes about, spouses that entered at one time legally, then over stayed, got married to a USC then adjusted status, they get to do that out of the goodness of USCIS's heart, not because they are European or Japanese. As I said, if a Mexican did the exact same thing, entered at one time legally, (with inspection), overstayed, married a USC then applied for adjustment of status (I-130 / I-485) in most jurisdictions they would be processed without having to leave the country, just as Europeans and others currently are. (If someone has facts to the contrary let me know, I may be wrong on this.)

My point is that he is trying to say the process is racist and allows Eur/Jap spouses to adjust status and does not allow Mexican's to adjust. If the Mexican entered without inspection (illegally), then they must return to Mexico to apply for an immigrant visa.

WSHC, I aldo wanted to echo your frustration about caseloads. The pilot program is essentially dead in CDJ at the moment. I've complained for years why CDJ can process 20,000 plus waivers a year while Rome, where our case was decided, did a couple hundred at most. The truth is that most people in CDJ are simple unlawful presence while most other countries involve CIMT or misrep making cases exponentially harder.

As hard as it seems right now, I can tell you that it will get better. It will end and your lives will move forward. I can sit here now, 2.5 yrs since my husband's return and almost 5 yrs since his deportation, and say that we're all okay. It doesn't hurt as much as it did and I'm letting go of all the frustration and anger from those years. I wish for you the same peace and comfort one day soon.

Thanks for the good wishes, they are appreciated!

[Dumb/Dumber 61]

Yes, in our case we did leave the country and attempted to reentry, triggering the bar, (our mistake cause by their mistake). But in the cases this author, an Immigration attorney writes about, spouses that entered at one time legally, then over stayed, got married to a USC then adjusted status, they get to do that out of the goodness of USCIS's heart, not because they are European or Japanese. As I said, if a Mexican did the exact same thing, entered at one time legally, (with inspection), overstayed, married a USC then applied for adjustment of status (I-130 / I-485) in most jurisdictions they would be processed without having to leave the country, just as Europeans and others currently are. (If someone has facts to the contrary let me know, I may be wrong on this.)

My point is that he is trying to say the process is racist and allows Eur/Jap spouses to adjust status and does not allow Mexican's to adjust. If the Mexican entered without inspection (illegally), then they must return to Mexico to apply for an immigrant visa.

Thanks for the good wishes, they are appreciated!

I can not get my husband here the legal way and Obama is working on this? I do have sympathy and compassion for everyone in the immigration process, but we are all in pain, even the ones of us trying to do it the legal way.

[momof1 205]

This is a legal way as well. The intent of congress in allowing people to file waivers of inadmissibilities is "to promote family unity and prevent the hardship of separation". This is more in keeping with congress' original intent. In most cases, these people have long standing relationships/marriages, have lived together many years, and children are involved. This still proposed not yet approved change only gives the right to file in country to those with certain inadmissibilities. They still have to proceed abroad and prove relationship validity like everyone else. Having said that, I've only ever seen one case on I2us with trouble proving bona fide relationship when a waiver was involved. Compare that to the numerous cases we see here daily about visas beung denied. The waiver process doesn't have any effect on your case when compared to the havoc fraudsters wreak.