On April 2, U.S. Citizenship and Immigration Services (USCIS) published a Proposed Rule that would make an important change in the process for applying for a waiver to a bar to re-entering the U.S. Under current law, undocumented immigrants who have been in the U.S. without status for six months or more are barred from re-entering for three years once they leave. If they have been here without status for a year or more, the bar to re-entry goes up to ten years.
Typically, a person applying for the waiver is eligible for an immigrant visa. However, if the person is not eligible to adjust his or her status within the U.S., the immigrant visa must be picked up at a U.S. consulate in the individual's home country. Once the individual leaves the U.S. to pick up the visa, the three- or ten-year bar is triggered. It is a Catch-22 that immigrants must deal with all the time: they can gain Lawful Permanent Resident status with the immigrant visa they are eligible for, but to acquire that visa, they must leave the U.S. and thus are barred for years from coming back.
A waiver is available if an individual can show that a citizen or legal permanent resident spouse or parent would suffer "extreme hardship" if the individual was forced to remain outside of the U.S.
With the current process, however, the individual cannot apply for that waiver until he or she leaves the country to pick up his or her visa. The wait for a decision on the waiver can stretch to months, during which time the family is separated.
What USCIS proposes to do is to change the order of the process. The individual will apply for the waiver before leaving the U.S. With waiver approved, the individual will then leave the U.S. to pick up his or her visa. The purpose of the waiver, after all, is to prevent lengthy family separation; under the current process, the family is separated for an extended period while a decision is made on whether or not the family should be separated for an extended period.
The proposed provisional waiver process will alleviate the problems that result when families suffer lengthy separation because a family member must wait abroad for his or her waiver to be processed. The rule could go further, however, to reduce family separation.
You can weigh in to help improve the rule. Public comments are being accepted until June 1. Here's how you can make your voice heard.
Go to this page of the Federal Register page where you can find the proposed rule (titled, "Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives"): http://www.regulations.gov/#!documentDetail;D=USCIS-2012-0003-0001
Click on the button that says "Comment Now!"
Fill out the information on the form, and type in your comment. When you are done, hit submit.
Here are some points you can make, which the Forum and other experts on these issues have identified as key weaknesses in the Proposed Rule:
The spouses and children of Lawful Permanent Residents qualify for hardship waivers if they can prove "extreme hardship" to a Lawful Permanent Resident spouse or parent. Yet, the proposed waiver process will be available only to immediate relatives of U.S. citizens. Individuals who can show extreme hardship to Lawful Permanent Resident spouses or parents, and relatives in family preference categories including unmarried adult children of U.S. Citizens, should also be eligible for the provisional waiver process.
Eligibility for the new provisional waiver process should be expanded to cover individuals in removal proceedings, those individuals in cases where a Notice to Appear has been issued but not yet filed with the court, those with a scheduled visa interview, and those whose cases have been administratively closed. Expanding eligibility to individuals in these cases will reinforce agency goals to focus removal resources on high-priority cases.
Eligibility for the new provisional waiver process should include individuals who, through an exercise of prosecutorial discretion, have had their cases administratively closed. By excluding these individuals, USCIS would require individuals granted administrative closure under the prosecutorial discretion initiative to return to court to have their case re-opened and to accept voluntary departure. Given the Administration's commitment to the robust use of prosecutorial discretion, it would be illogical-and a waste of government resources-to force these individuals to re-open their cases in order to apply for the waiver.
The extreme hardship standard has been applied inconsistently over the years. USCIS should establish clear guidelines for making extreme hardship decisions that include the devastating effect of family separation as well as financial hardship.
In the proposed rule, there is no opportunity for an individual who has been denied a waiver to re-file or appeal. Individuals who have received an initial denial should have an opportunity to re-file at least once. The final rule should also contain an administrative appeal process.
If you would like to see more detail and/or rationale for these concerns, you can view a memo prepared by the American Immigration Lawyers Association and more than 40 other organizations, posted to the Federal Register site here.