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The CIS has announced that a major change to the way that it processes waivers for unlawful presence will be finalized by the end of the year.  This change has the potential to help thousands of immigrants married to Americans but unable to adjust status in the U.S. to regularize their status.

It has always been one of the worst parts of being an immigration lawyer.  I meet a young couple- an American citizen and her foreign-born husband.  They may have a kid or two.  Maybe the kid is running around the office or quietly munching on pretzel sticks.  The couple works and owns a small house.  They want to know if she can get him a green card.  I already am fairly certain I know the answer because the questionnaire they filled out in advance of the meeting has told me most of what I need to know.  He entered the country illegally (“without inspection”).

Under US law, an individual who entered the United States without inspection is ineligible to obtain adjustment of status to residence in the United States.  Even if they are married to a U.S. citizen.  Even if they have American children.  No matter how long they have lived here or where their entire family resides.  There is an exception, however.  If someone- a family member, an employer- filed an immigrant petition on behalf of the foreign national prior to April 30, 2001, they will be “grandfathered” under the old 245(i).  This provision allowed an individual who had a basis for residence, such as a U.S. citizen spouse, to adjust his status in the U.S. to permanent resident by paying a $1000 fine.  As a provision of law, it was brilliant: it allowed thousands of people to fix their status, kept families together, and allowed employers to sponsor needed workers.  All while providing a substantial sum to the U.S. Treasury.  As brilliant legislation, it was, of course, doomed.  It was eliminated in 1998, revived briefly between December 2000 and April 2001 and has been buried since.  The law does provide that anyone who was the beneficiary of a petition filed prior to April 30, 2001 and was physically present in the U.S. on December 20, 2000 can continue to claim the benefits of 245(i).

The grandfathering provision, while beneficial, does little to solve the situation of the couple described above as most of these people have entered the U.S. long after April 2001.  This couple has two options.  First, they can choose to do nothing.  The husband can remain in the shadows, fearful of removal, unable to get work authorization, decent work, health care or a driver’s license.  Second, they could elect to try their hand at seeking residence through processing an immigrant visa at a U.S. consulate in the husband’s home country.  This option would require the husband to return home and to apply for a visa abroad.  But, aha!  By departing the U.S. after having been here illegally for more than a year, the husband has subjected himself to a ten year bar on returning to the U.S.  The consulate would have to deny the immigrant visa for a period of ten years.  The law does provide for a waiver of the ten year bar.  If the applicant can prove that denying him an immigrant visa would cause his U.S. citizen wife “extreme hardship,”the ground of visa ineligibility may be waived by the consulate and a visa issued.  But this waiver may only be sought after the immigrant visa is denied.  In other words, the husband must proceed abroad, apply for the visa, get denied and then apply for the waiver, all with no guarantee that he will be able to return in less than ten years.  Thus, it may come as no surprise that many people choose the first option, as unappealing as it is.  Only people with the strongest evidence of hardship would take that gamble.

The Obama administration is trying to do something about this catch-22 situation.  The administration has proposed to move the processing of these waivers from the foreign offices to the U.S.  Most importantly, they will process these waiver applications before people proceed abroad.  This minor procedural change will have an enormous impact on the lives of thousands of immigrants and their families.  By knowing in advance that they will be able to return, scores of immigrants will step out of the shadows to regularize their status by seeking waivers and immigrant visas.  With the uncertainty of being able to return  and prolonged separation from loved ones and employment eliminated, many immigrants will be able to take important steps to improve their situation.

The administration announced its intention to change the processing of these waivers in January 2012.  In April 2012, the Department of Homeland Security (DHS) published proposed regulations to govern this process.  According to DHS, an individual who is the beneficiary of an approved immigrant petition by their U.S. citizen spouse or son or daughter over 21 may seek a provisional waiver before departing the U.S. for a visa interview in their home country.  That waiver would only become effective once the person departs the U.S. and applies for a visa at the U.S. consulate abroad.  With waiver in hand, an applicant can be confident that he is likely to return within a relatively short period of time after leaving the U.S. The regulations identify some key points regarding the new process:

• The provisional waiver process is only available to the beneficiaries of “immediate relative” petitions.  These are the spouses, children (under 21), and parents of U.S. citizens.
• Individuals in removal proceedings will not be able to seek provisional waivers.
• It can only waive unlawful presence.  Although waivers are available for certain misrepresentations and crimes, those waivers may not be sought provisionally.
• There will be a biometric requirement.
• There is no appeal/ reconsideration mechanism, for denied provisional waiver applications.

The April 2012 regulations are proposed regulations and not yet in force.  By law, an agency must provide the public with an opportunity to comment on any proposed regulations.  In May 2012, the American Immigration Lawyers Association submitted extensive comments in an effort to improve on the provisional waiver process.  The latest information is that CIS has reviewed all the comments and is working on a final rule which they intend to publish before the end of the year. 

Despite the imperfections of the proposed rules, this change in waiver processing has the potential to help thousands of immigrants, their families, employers and communities.  Many people have always been able to demonstrate extreme hardship but were too worried about the potential of being stuck abroad for ten years if the case did not go well.  Even if it was approved, waiver processing has usually required at least a year abroad for the applicant.  By being able to depart abroad to seek a visa with the security that he will be able to return, the new rule will allow thousands of immigrants to resolve their status and generate additional stability and tranquility in their lives.