Immigration ‘Fix’ Opens Door to Spouses of U.S. Citizens

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David Sperling

Nassau Lawyer

“Immigration Fix Opens Door to spouses of U.S Citizens”

Illegal immigrants married to U.S. Citizens will soon be emerging from the shadows to apply for their green cards,  thanks to a powerful tweak in government regulations that will take effect on March 4.  This so-called “provisional waiver,” which was announced by the Obama administration last January, will potentially benefit hundreds of thousands of immigrant spouses and other “Immediate Relatives” of U.S. Citizens.  (Immediate Relatives refers to spouses of U.S. Citizens, minor children of U.S. Citizens and parents of adult Citizens. The final rule, published in the Federal Register on Jan. 2 this year,  clarified how Citizenship and Immigration Services (CIS) will implement the in-country provisional waiver.

Why couldn’t immigrant spouses – who entered the United States illegally — obtain Legal Permanent Resident (LPR, or green card) status before?  A harsh immigration law enacted in 1996, Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), created a 10-year bar to re-entry for individuals who accrued more than one year of “unauthorized presence” in the United States before departing the country.  (The law also created a 3-year bar for those who accumulated 180 days or more of unlawful presence.)

This provisional waiver does not apply to visa overstays, who can “adjust status” in the United States.  Foreign nationals who entered illegally and were married to U.S. Citizens, however, had no recourse other than “consular processing.”  Therein lies the “Catch-22.” Once the bar was triggered (by leaving the United States), a foreign national needed a “waiver” for the unlawful presence to re-enter. This waiver was available only for those foreign nationals who were 1) married to LPRs or U.S. Citizens or had parents who were Citizens or LPRs and 2) could demonstrate that separation from the qualifying relative would result in “extreme hardship.”  In many cases, this was a highly subjective standard employed by embassy officials, from which there was no appeal.  Foreign nationals often had to wait five months or more for their waivers to be adjudicated.

Because of this snag, most immigration lawyers, including myself, almost never advised spouses of U.S. Citizens to return to their home countries for consular processing. In most cases, it was too risky and would in any case result in a long period of separation for the husband and wife. The result was that very few spouses departed the United States to obtain their legal status.

The provisional waiver, which takes effect on March 4, changes everything.  Now, once a spouse has an approved I-130 Petition for Alien Relative (as beneficiary), he or she can apply to CIS for the waiver in the United States. Once the waiver is approved, the spouse would then be scheduled for consular processing in his or her home country. The trip abroad would take no more than 2 or 3 weeks at most – to get fingerprint  clearances, a medical evaluation and consular interview. If all goes well, and there are no disqualifying factors,  the spouse would be granted LPR status and could immediately re-enter the United States.

In addition to spouses, some minor children and parents of U.S. citizens may also  be eligible for the provisional waiver.  However, “unauthorized presence” does not accrue until an individual turns 18 – before that age, a minor could undergo consular processing without requiring a waiver. Also, beneficiaries are required to have a U.S. Citizen or LPR spouse or parent that would suffer “extreme hardship” if they were to be deported.  Very few individuals others than spouses of U.S. citizens would qualify under this standard.

Of course, there are many Immediate Relatives of U.S. Citizens who  should not apply under this program. Specifically, this includes any immigrant who is “inadmissible” pursuant to the Immigration and Nationality Act because of certain criminal convictions. Disqualifying offenses include, of course, violent crimes and drug trafficking.  But they may also include such relatively minor offenses as shoplifting, marijuana possession and document fraud.  The range of these inadmissible crimes is  beyond the scope of this article; however, criminal-defense attorneys should always inquire into the immigration status of a non-Citizen client.  See Padilla v. Kentucky, 130 S. Ct. 1473 (2010)  the seminal Supreme Court case on the obligations of criminal-defense counsel to non-Citizen clients.)

This provisional waiver, along with the recently enacted DACA (Deferred Action for Childhood Arrivals) program – benefiting illegal immigrants who arrived in the Uniteed States as children —  is part of a rapidly evolving political climate.

Illegal immigration used to be considered the deadly “third rail” in U.S. politics.  After the recent presidential elections, however, it has become clear to both political parties that the Hispanic vote is crucial.  No serious politician on the national stage will ever again speak of “self-deportation,” as Gov. Romney did, to his lasting regret.

Although President Obama has not shown any inclination to slow down the record pace of deportations during his administration – almost 400,000 per year, he is nevertheless creating openings for hundreds of thousands of hard-working, law-abiding but undocumented immigrants to escape the shadows and enter the mainstream.

The new few years should prove a time of rapid change, as the country prepares to legalize and assimilate many of the estimated 11 million illegal immigrants in the country.


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