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The Provisional Waiver and Reducing the Hardship of Family Separation

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In the absence of promised immigration reform and the failure of Congress to act during the first two years of the Obama Administration, the U.S. Department of Justice (DOJ) and the Department of Homeland Security (DHS), through their respective offices and various immigration agencies have moved to tweak available relief where legally feasible. As early as June 17, 2011, Immigration and Customs Enforcement (ICE) released its first memo on the use of prosecutorial discretion. This was followed by a later memo providing more specific guidance.

On January 6, 2012, another announcement was made. This one is a proposal directed at reducing the time that families are forced to be separated by a protracted immigration process. It is important to understand that this is not a change in law, but only an amendment of interpretive regulations, as only Congress has the authority to legislate. The focus of the change is on immediate relatives. An immediate relative is defined as the spouse, parent, or child (under 21) of a U.S. citizen. However, only the spouse or parent of a U.S. citizen would be eligible for the new proposed rule of provisional waiver.

The provisional waiver will minimize the period of separation for a group that already enjoys special status, as determined by Congress. This group of immediate relatives may immigrate quota free, thus circumventing the often long wait for visa availability under the annual numerical limitation system accorded to classes of family and employment based categories. Despite this special benefit, if an immediate relative entered the U.S. without a visa, circumventing a border inspection, (s)he may not adjust status in the U.S., but must leave and apply for the immigrant visa at a U.S. Consulate abroad. It is this departure that triggers the need for a waiver in order to return.

The current system: The application for waiver must be filed with the U.S. Consulate abroad, which then forwards it to the U.S. Citizenship and Immigration Services (USCIS) for adjudication. The waiver applicant must remain outside the U.S. until a favorable decision is received. This can take months or may even exceed a year. Understandably, this delay causes not only great anxiety and suffering due to the physical separation of the family, but is also a major disruption of income if it is the wage earner who is outside the U.S. To qualify for the waiver, the visa applicant must demonstrate extreme hardship to a U.S. citizen or lawful resident parent or spouse.

The proposed rule: A provisional waiver may be submitted to the USCIS before the visa appointment outside the U.S., and the applicant may continue to wait in the U.S. until a decision is received. If the provisional waiver is granted, the visa applicant may proceed to his visa interview outside the U.S. where the immigration process will take days instead of months. To qualify for the provisional waiver, it will still be necessary to establish extreme hardship, but the qualifying hardship will be limited to a U.S. citizen parent or spouse, although not be restricted to the petitioner. In other words, if the U.S. citizen spouse filed the visa petition on behalf of the intending immigrant, but the hardship is to the U.S. citizen parent of the intending immigrant, it will still be considered.

Limitations: First, the provisional waiver may be granted only for immigration status violation in the form of unlawful presence. If there are other issues of inadmissibility such as fraud or misrepresentation or criminal convictions, the application for waiver must be filed with the consulate abroad through the existing waiver application process. Second, there are some convictions or acts for which waivers are not available, such as drug and security related offenses, false claims of U.S. citizenship, crimes of violence, other aggravated felonies, and entries after deportation or removal.

Finally, it is important to understand that the provisional waiver is only a proposal at this stage and the process is not yet in place. Generally, a change in regulations requires publication in the Federal Register for notice and public comment before it is implemented. Most importantly, if the provisional waiver is denied, it is possible that the case may be tuned over to ICE for removal proceedings before an Immigration Judge. Under such circumstances, if the visa applicant has been in the U.S. for at least 10 years, (s)he may apply for relief in the form of cancellation of removal, where evidence of a heightened hardship (exceptional and extremely unusual) is required, but where it is expanded to include U.S. citizen children, and lawful resident spouse or parent.

It should be evident that almost no immigration benefit is a simple matter of filling out forms. If the application is not properly completed or not adequately documented with detailed facts and available evidence, a denial could put the applicant in a worse situation than (s)he was prior to making the request. Attempting to go it alone without representation of an experienced immigration attorney could cause irreversible damage.

Content concerning legal matters is for informational purposes only, and should not be relied upon in making legal decisions or assessing your legal risks. Always consult a licensed attorney in the appropriate jurisdiction before taking any course of action that may affect your legal rights.