US Citizenship and Immigration Services has proposed a new
policy proposal which will allow thousands of spouses of US citizens to come
forward and obtain their green cards.
The Obama Administration wants to promote family unity. Spouses of US citizens are generally given
special preference in legalizing their status.
However, many thousands of families have a US citizen spouse, married to
an undocumented spouse who entered the US without any type of visa. These undocumented spouses must legalize
their status at the US Consulate in their home country, as a type of punishment for having entered the US
without any visa at all.
The problem comes with the 1996 “Illegal Immigration Reform
and Immigrant Responsibility Act” (IIRAIRA) IIRAIRA was partly enacted to
“punish persons” who were unlawfully present in the US. IIRAIRA has a provision requiring anyone who
was in the US in unlawful status for more than one year, and left the US for
the personal interview at the US Consulate, to remain outside the US for a period of 10 years. There is a possible Waiver of this
10-year bar, but up until now, the Waiver had to be filed at the US Consulate
abroad. The result was that the undocumented
spouse had to depart the US for the personal interview at the US Consulate, and
hand in the Waiver packet subsequent to the interview. Reviews of the Waiver packets typically took
more than 10 months, and easily up to 18 months or more to review at the US
Consulates abroad, leaving families separated for years at a time.
Steven, a US citizen, falls in love with Maria. Maria was sent to the US by her elderly
grandmother in Mexico, when the grandmother could no longer care for her. Maria was 16 years old when she crossed the
border from Mexico into Texas. It was a
harrowing experience for a young girl of only 16 years, traveling across the
Rio Grande River, and across desert areas.
She watched one of her fellow travelers die from exposure en route to
Steven wants to sponsor Maria for her permanent status in
the US, but learns that because Maria entered the US without any visa, she has
to return to the US Consulate in Ciudad Juarez, Mexico to have her personal
interview. He worries for her
safety. Ciudad Juarez is a border
town. It is very dangerous and more than
one applicant has been murdered there in the past. Maria has no family near Ciudad Juarez, and
Steven worries about her leaving their 6 month old baby behind with him. She cannot risk taking the baby with her,
since the baby would be at risk of kidnapping for ransom.
Steven also knows that Maria would have to remain in Mexico
for 10 years as her punishment for having entered the US without a visa. He can have her file a Waiver of that 10 year
bar at the US Consulate, but they are not guaranteed that the Waiver will be
approved. Even if it is eventually
approved, Maria could be in Mexico for 18 months or more waiting for the
In order to qualify for the Waiver, Steven must show that he
would suffer extreme and exceptionally unusual hardship if Maria were not
permitted to return to the US. Steven
has been studying for years to become an accountant. He does not speak Spanish and he would not be
able to continue his education or practice as an accountant in Mexico. In addition, he suffers from asthma. The baby has had ear infections, and is a US
citizen, but hardship to the baby does not count. Only hardship to Steven will be considered. Steven believes that he has a good case to
prove his hardship, but he doesn’t want to be separated from his wife for such
a long time.
Because of IIRAIRA, US couples have been separated for
years. Others have decided not to take
the risk, and the undocumented spouse has remained out of status in the US,
unable to obtain a Social Security number or driver’s license, or employment
US citizens are constitutionally guaranteed the right to
marry whomever they wish to marry, regardless of race, religion, or ethnic
background. When Steven fell in love
with Maria, he wasn’t thinking about her immigration status. Now, their future
together appears bleak.
The new policy will not permit Maria to have her interview
at the US Citizenship and Immigration Services office in Hartford. However, it will allow Steven to file the
Waiver inside the US, before Maria even leaves the US for her personal
interview. In this way, Steven and Maria
will know, in advance, if Steven’s hardship Waiver will be approved, before
deciding to have Maria leave for Mexico.
If approved, Maria would then be attending her interview, outside the
US, as her punishment for having entered the US without a visa, but will know
in advance that her Waiver has been pre-approved.
This new proposal is scheduled to appear in the Federal
Register on January 9, 2013.
This policy may only apply to immediate relatives of US
citizens, the hardship may only be to US citizens, and may only apply to
unlawful presence issues.
However, this new proposal should affect thousands of
families, and should reduce the number of undocumented persons in the US.
What do you think?