A significant number of undocumented immigrants in the United States initially enter lawfully as tourists and then fall out of status by overstaying. There are also a significant number who entered without valid visas or used the wrong visas and now find themselves in illegal status. Many opt to stay for varied reasons but most commonly for purposes of family unity.
On Jan. 6 the US Department of Homeland Security published a proposed new policy that will ease the process of obtaining their green cards through waivers of bars to reentry usually ranging from three to 10 years.
Josephine was working as a health care worker in Canada. In 2005, she visited New York with her friends then stayed on with her relatives in New Jersey although she lacked a proper US visa. A few months later, she married her long time fiancé, Roland, who is a US citizen. Josephine and Roland now have one child who is four years old. Unfortunately, their child suffers from a heart ailment and requires regular medical treatment.
Roland is the only breadwinner in the family and Josephine wanted to obtain legal status in order to work and help with their family income. Roland filed a petition for Josephine and it was approved. However, Josephine was told that she had to leave the US and get her immigrant visa in her home country. Under current law, if Josephine leaves the US to get her immigrant visa at the US Embassy in Manila, she will face a 10 year bar on reentry because she had incurred prior “unlawful presence” in the US for more than a year. She will be separated from her baby for 10 years.
With the Department of Homeland Security’s announcement of a change in policy, Josephine might be able to benefit from the proposed new procedure.
Bars to admission
This is the current rule: An individual who overstays for more than six months but less than one year is subject to a three year bar from reentering the US. One who overstays for more than a year is barred from returning to the US for 10 years. These bars to admission were put in effect by a 1996 immigration law. These bars are not triggered unless the individual departs the US after an unlawful stay and attempts to reenter. When the bars are triggered, the individual may only obtain a valid visa to reenter if a “waiver” of inadmissibility is filed and approved by the US Citizenship and Immigration Services.
If the 3-10 year bars are triggered after departure, why would one who is already in the US be motivated to depart at the risk of being separated from family members? Many just decide to stay on in unlawful status.
With the proposed policy, undocumented individuals will be allowed to file their waivers of unlawful presence within the US.
The waiver must be accompanied by proof indicating extreme hardship to US citizen-spouse or parent. Only after getting a favorable decision on the waiver will the individual need to depart to get their visa at the US Embassy in Manila.
A stateside waiver
Prior to this Jan. 6 announcement, applicants for waivers must depart the US first, apply for their visas outside the US, then apply for the waiver. He or she waits for the decision on the waiver outside the US. If denied, separation from family becomes a long-term reality.
Even if the waiver is approved, the processing time at the consular offices of the US embassy is usually protracted, especially in embassies that do not have USCIS offices. Even in embassies that do have USCIS officers adjudicating, some jurisdictions still take months or even years to decide. During this time, the individual applicant is separated from his family.
To resolve this predicament of family separation, the proposed policy would allow filing of the waiver in the US before departing to apply for a visa in one’s home country. This is now referred to as the “stateside waiver.”
Filing the waiver within the United States is just the first step. If the waiver of unlawful presence is approved, the US consular officer is not prevented from denying the visa based on other grounds of visa refusal such as criminal convictions and prior deportations.
While these changes will favor only certain qualified individuals, it is a small positive step towards fixing a broken system. Hopefully, it is an indication of more favorable immigration policies to come that recognize the value of family unity.
(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963)