The Obama Administration has proposed a change in the manner in which waivers of the 3 and 10 year bars are processed for the spouses and unmarried children under 21 of U.S. citizens. In order to illustrate how this change would work, here is the story of a family that is currently waiting for an immigrant visa after the waiver of the 10-year bar was approved:
S came to the U.S. at age 14 with her parents who received their legal permanent resident status through her brother. Because minor children cannot be included on the petitions of their parents filed by siblings, S came without authorization when her parents came to the U.S. as legal permanent residents. She moved to a small town in Texas, attended school, learned English and fell in love with J, a permanent resident. S and J have been married 7 years and have 2 U.S. Citizen children.
J naturalized and filed a petition for S to receive permanent residence which was approved. Because she came into the U.S. without authorization, S was required to return to her home country, Mexico, to obtain her permanent residence. Because she lived in the U.S. without authorization for more than 1 year after her 18th birthday, S was barred for 10 years from re-entering the U.S. after she left to obtain her permanent residence, but she was eligible for a waiver of the 10-year bar because she is married to a U.S. citizen. S applied for a waiver of this bar which was granted after she demonstrated that there would be extreme hardship to J if she was not allowed to return to the U.S.
S is in Ciudad Juarez, Mexico, waiting to receive her visa to re-enter the U.S. after her application for a waiver of unlawful presence was approved. She has been there over 4 months (since August 2011) and is still waiting for the Consulate to process her waiver which was approved on December 16, 2011, and issue her visa to return to the U.S. and her family. While S is in one of the most dangerous cities in Mexico, J struggles to perform his job as a Quality Control Technician, care for his children and sleep while worrying about his wife's safety.
Under the proposed rule, S would have been able to apply for and receive approval of the waiver before she left the U.S. She would have been able to return to the U.S. shortly after her immigrant visa interview in September 2011, spending only 1-2 weeks in Ciudad Juarez instead of over 4 months.
The proposed rule is not an "amnesty," but is a common sense change in the process for spouses of U.S. Citizens like S so that they can receive their legal permanent residence with the least amount of separation from their family. Under the current system, many who are eligible for permanent residence elect to remain unauthorized because of the hardship that the separation would be for their family. This rule change will allow these family members to come out of the shadows and obtain their legal permanent residence.
I participated in a conference call yesterday with U.S.C.I.S. Their goal is to have the new rule approved and operating by the end of the year.
UPDATE 1/16/2012: S picked up her immigrant visa today from the DHL office in Cd. Juarez. She expects to re-enter the U.S. tomorrow. Cost - 142 days separation, 3 missed holidays (Halloween, Thanksgiving, Christmas), lots of tears.
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