Texas Immigration Lawyer Blog

Stateside processing of unlawful presence waivers expanded to LPR family members

Today U.S.C.I.S. published the rule expanding stateside waiver processing to "all statutorily eligible individuals regardless of their immigration visa classification." The final rule is effective August 29, 2016. 

This expansion of the  provisional waiver process will allow family members of lawful permanent residents (LPRs) who are eligible for immigrant visas, to apply for waivers of unlawful presence and the 3 and 10 year bars prior to leaving the U.S. for their consular visa appointments, as U.S. citizen family members have been doing since 2013.  Applicants can apply for provisional waivers of the unlawful presence ground of inadmissibility, based on the extreme hardship their U.S. citizen or LPR spouses or parents would suffer if the waiver were not granted. 

A revision to form I-601A will be posted on August 29, 2016. 

USCIS also expects to update its Policy Manual to provide guidance on how USCIS makes “extreme hardship” determinations in the coming weeks.

 

Provisional "stateside" waivers expanded to more immigrants

President Obama, as part of his Executive Action on immigration, has announced an expansion of the immigrants who can apply for a provisional waiver of the 3-10 year bar for unlawful presence. 

Q - What is a provisional waiver?

A - Many undocumented immigrants who are beneficiaries of a family petition are required to leave the U.S. in order to apply for permanent residence. Once they leave the U.S., they are barred for 3-10 years because they have been unlawfully present in the U.S. They can apply for a waiver or "pardon" of their unlawful residence, but in the past were required to do so once they had left the U.S. and had their interview at a consulate. This resulted in prolonged family separation while waiting for waivers to be approved. 

The provisional waiver program was established in 2013 to allow spouses and children under 21 of U.S. citizens to apply for a waiver while in the U.S. ("stateside"), and to spend less time separated from their family members in the U.S. in order to apply for permanent residence. 

In his memorandum dated November 20, 2014, Secretary Jeh Johnson instructed DHS to amend the 2013 regulation to expand the provisional waiver program to others eligible for immigrant visas and a waiver: spouses and children of permanent residents, and children over 21 of U.S. citizens. 

Q - Who can apply?

A - Undocumented immigrants who have (1) an approved immigrant petition; (2) an immigrant visa immediately available; (3) a U.S. citizen or permanent resident spouse or parent who will experience "extreme hardship"  if they are not allowed to remain in the U.S.

Secretary Johnson also instructed U.S.C.I.S. to clarify the factors that are considered in determining whether the "extreme hardship" standard has been met. 

Q - When can I apply?

A - Spouses and minor children of U.S. Citizens can apply for a provisional waiver now.

Spouses and children of permanent residents and children over 21 of U.S. citizens must wait for the regulations to be revised by U.S.C.I.S. No deadline was given for the adoption of these new regulations. 

NOTE: Parents are not included in the category of immigrants who can apply for a waiver of unlawful presence, and will not be included in the provisional waiver program. 

Local attorney, Susan I. Nelson, discusses current immigration issues

Here is a copy of the Q&A  article that ran in Tiempo this week: 

Tiempo: Tell us about your experience with clients and immigration issues.

Nelson:  My first encounter with immigration law was when my husband and I adopted our daughter from Russia. Although we are both lawyers, we needed help to navigate the complex immigration process. After our experience with the adoption, I started receiving calls from other attorneys and individuals who knew of my experience. I began practicing immigration law beyond pro bono cases in 2003, and it is now where I spend the majority of my time. 

I like immigration law because it allows me to help people keep their families together. Many lawyers help pick up the pieces when families fall apart, but I work to help families who want to be together stay together. I am often frustrated by the current state of the law when I see deserving people whose families are being torn apart without remedy or recourse.

Tiempo:  What is the difference between the Texas DREAM Act and the one that is being discussed in Washington?

Nelson: The Texas DREAM Act was signed into law by Governor Rick Perry in 2001 and provides that all students, regardless of immigration status, may qualify for in-state tuition at Texas colleges or universities provided they have lived in Texas the three years leading up to high school graduation and resided in Texas the year prior to their enrollment in higher education.

The Texas Dream Act has succeeded by providing access to higher education for students who otherwise are unable to afford the increasing cost of attending college and by providing needed money to Texas colleges and universities. In the present legislature a bill has been filed that would repeal the Texas DREAM Act. Governor Perry hinted that he would veto such an attempt to repeal in-state tuition for undocumented students, but I hope that this bill will never reach his desk.

The federal DREAM Act (The Development, Relief, and Education for Alien Minors Act) was first introduced in Congress in 2001 with bipartisan support but never became the law. If enacted, it would provide a path to permanent residence for undocumented immigrants who were brought to the U.S. as children, who graduated from high school or obtained a G.E.D. in the U.S. and who have good moral character if they complete two (2) years of college or in the military.

Tiempo:  What can be expected with the political climate on immigration now that President Obama has been re-elected?

Nelson:  In recent years, attempts to fix our nation’s broken immigration laws have been hijacked by the anti-immigrant, anti-“amnesty” movement. I am hopeful there will be a change in the dynamics and an opportunity for Congress to make changes in our laws that will place the 12 million undocumented immigrants who are in the U.S. on a path to earning legal permanent residence.

Tiempo:  Could you explain in a few words the Deferred Action decision from last year?

Nelson: In June of 2012, the Obama administration announced that it would accept requests for Deferred Action for Childhood Arrivals (DACA). This initiative is designed to temporarily suspend the deportation of young people residing unlawfully in the U.S who were brought to the United States as children, are attending or have graduated from U.S. schools and who have good moral character. Young people who are approved for DACA receive an Employment Authorization for 2 years that can be renewed as long as the DACA program continues, but it does not provide a path to permanent residence for these young people.

Tiempo:   What cases have you dealt with recently regarding Deferred Action?

Nelson:  I represent a number of clients with DACA cases. In addition, I provide direction to the Baylor Law School Immigration Clinic. We assisted 120 young people to complete applications in the Fall, and plan to have another DACA Clinic this Spring. Most DACA applicants receive approvals in about 3 months.

Tiempo: What is the current status of applications for immigrants who have been victims of a crime in McLennan County?

Nelson:  In 2000, Congress created the U-Visa for victims of certain crimes in order to encourage undocumented victims to report crimes and cooperate with law enforcement agencies.

In order to apply for the U-Visa, a crime victim must first obtain a certification from a law enforcement agency, prosecutor or judge stating that they were the victim of a qualifying crime and that they cooperated with law enforcement.

There has been a problem in McLennan County in recent years. The Waco Police Department does not sign the required certifications but refers all requests to the District Attorney’s office.

District Attorney Abel Reyna has declined to sign all of the requests for certification that I submitted on behalf of crime victims, including one for a minor sexual abuse victim whose abuser is serving 35 years in prison because she and her mother came forward.

Fortunately, judges can also sign the certifications. Judge Ralph Strother recently signed the certification so that this brave young girl can apply for a U-Visa.

However, our judges cannot shoulder the entire burden. There is a need for the DA’s office and police departments to also sign the certifications, and I hope that they will reconsider their policies.

Tiempo:  What can the community do to support the DREAM Act Alliance locally?

Nelson: The Waco DREAM Act Alliance is a grassroots advocacy organization dedicated to promoting the DREAM act and immigrant rights. They meet regularly and support local DREAMers and their families. You can find them on Facebook at http://www.facebook.com/groups/WacoDREAM/ or on-line at www.wacodream.org.

You can also express your support for the DREAM Act and comprehensive immigration reform by contacting your congressional representatives and Senators. You can find your representative’s contact information at http://www.house.gov/representatives/find/. Your Senators’ contact information can  be found at http://www.senate.gov/.

The Waco DREAM Act Alliance and national organization United We Dream are working to stop the deportations of family members of DACA eligible young people and U.S. Citizens. If you know of someone in deportation proceedings who fits into this category, they should complete a Case Questionnaire at http://unitedwedream.org/end/ and contact the Waco DREAM Act Alliance. 

Tiempo:  What is the new rule that effects the way that spouses of U.S. Citizens obtain their permanent residence?

Nelson: The Obama Administration is attempting to lift the burden of our broken immigration laws by making rules that change the process but not the law.

Under current law, many immigrants who enter the country without inspection cannot apply for permanent residence (a “green card”) in the U.S., and instead must finish the immigration process abroad.  Unfortunately, for most people, just leaving the country—even to pick up a visa sponsored by a family member—automatically makes the intending immigrant subject to a penalty for their “unlawful presence,” potentially separating them from their family for up to ten years.

For some, but not all, the penalty can be waived. To be successful, applicants must show that denying the case would be an extreme hardship to their qualifying relative(s); the impact on the immigrant doesn’t count.  Hardship factors can include family separation, economic hardship, medical issues, country conditions abroad, and any other difficulty or harm faced by the qualifying relative(s), if the waiver isn’t granted.

Under the old rule (which will continue to be the process for spouses of permanent residents), the applicant can not apply for the waiver until after they leave the U.S. and have their consular interview. They are required to wait in their home country while the waiver application is decided. 

Immigrants can be stranded outside the U.S. for months or even years while waiting for a decision on whether they can return to their family. Many families endure the emotional strain, financial hardship and dangerous conditions of this waiver process. Others simply are unwilling to take the risk.

The new rule allows spouses of U.S. Citizens to apply for a provisional waiver of unlawful presence before they leave the U.S. for their consular interview. If they receive the provisional waiver, they will leave the U.S. to apply for their immigrant visa knowing in advance that their case will probably be approved, and they could be back with their families—as a legal resident—in a matter of weeks.

The new rule takes effect on March 4, 2013.

Susan I. Nelson is a Waco attorney and practices with her husband, Alan Nelson, in The Nelson Law Firm, P.C. She represents individuals and businesses in immigration cases and writes the Texas Immigration Lawyer Blog (www.centeximmigration.com) in which she provides news and opinions on immigration law and policy.  Susan came to Waco in 1976 to attend Baylor University, and has been here since that time. She has practiced law in Waco since she graduated from Baylor Law School in 1990.

Six Things You Need to Know about Stateside Processing of I-601A Waivers

AILA Leadership Blog by Laura Lichter

Starting March 4, 2013, certain relatives of American citizens who are in the country illegally and need a waiver of unlawful presence before being eligible for a green card can get a decision on their case before leaving the United States.

For those who can take advantage of the new rule, this means peace of mind, knowing that their loved one is likely to successfully complete the immigration process and not be stranded in a foreign country for an unknown length of time.  For some, however, the new rule will do nothing to resolve their immigration issues.

1.      What is the new rule and how can it help my family?

Under current law, many immigrants who enter the country illegally or overstay their visas cannot apply for permanent residence (a “green card”) in the U.S., and instead must finish the immigration process abroad.  Unfortunately, just leaving the country—even to pick up a visa sponsored by a family member—automatically makes the intending immigrant subject to a penalty for their “unlawful presence,” potentially separating them from their family for up to ten years.

For some, but not all, the penalty can be waived.  Before this new rule, immigrants could be stranded outside the country for weeks, months or even years while waiting for a decision on whether they could return to their life in the United States. And all that time, the immigrant was stuck abroad, usually with no legal way to return.  Many families endured the emotional strain, financial hardship and dangerous conditions. Others simply were unwilling to take the risk.

The new rule means that many immigrants will leave the United States, knowing in advance that their case will probably be approved, and they could be back with their families—as a legal resident—in a matter of days.

2.      Who can apply under the new rule?

Only applicants who are an immediate relative of a US citizen (spouses, parents and certain children) can apply at this time, though the rule may later be expanded to other relatives.

The applicant must be physically present in the United States, and not already have a scheduled interview at a U.S. consulate abroad.  Also, the provisional waiver is only available if the sole issue holding up a case is unlawful presence.  Applicants who have criminal issues or other immigration violations cannot use the provisional procedure.

Individuals who are in immigration court or who have an order of removal or voluntary departure may not qualify unless they get special permission from the government and a court order resolving their case.

To be successful, applicants must show that denying the case would be an extreme hardship to their qualifying relative(s); the impact on the immigrant doesn’t count.  Hardship factors can include family separation, economic hardship, medical issues, country conditions abroad, and any other difficulty or harm faced by the qualifying relative(s), if the waiver isn’t granted.

3.      What does it mean that the waiver is “provisional?”

Even if a waiver is granted, the approval is “provisional.”  As a practical matter, this means that the government has reviewed the case and believes that the waiver should be granted, but there is no guarantee that a case will be successful if facts change or new information comes to light.  For example, if an applicant had previous immigration violations or criminal history, the provisional waiver will be revoked.

If any new issues arise, and the applicant is still eligible for a waiver, he or she will be able to re-apply using the existing process, but will have to wait abroad for a decision on their case.

4.      When can I apply?

The new rule goes into effect on March 4, 2013, and no filings will be accepted before that date. You can only apply for a provisional waiver after an immigrant petition has been approved.  If you haven’t filed yet or you’re still waiting for a decision on a pending petition, you can’t apply for the provisional waiver—yet.

5.      What else do I need to know about provisional waivers?

A provisional waiver is not a legal status, and even an approved waiver doesn’t provide work authorization, a social security number or a driver’s license. Having a provisional waiver will not protect you from deportation or any other consequences of being in the country illegally.

If an application for a provisional waiver is denied, there is no appeal.  If you have more or better evidence to prove your case, you can re-file, with a new filing fee. Remember, not everyone can be sponsored or qualify for a waiver, and just as importantly, not everyone needs a waiver.

6.      Do I need to work with an attorney?

The immigration process can take months, even years, and government filing fees and other expenses are significant—it’s best to know your options before investing time and money.  A thorough legal consultation should look at all aspects of your immigration history to find the best solution for your family, not just evaluate eligibility for a provisional waiver.

Always work with a licensed immigration attorney.  Never trust legal advice from an unregulated consultant or notario. Consider consulting with an experienced immigration lawyer before starting the process to make sure that you qualify, and that stateside waiver processing is the best solution for your immigration case.

 Additional Resources

Always turn to reputable sources for immigration advice and information about new developments. Finding an AILA lawyer is a good place to start. Members listed on www.ailalawyer.com meet legal education and malpractice insurance requirements, and have been AILA members for at least two years.

 

DHS Publishes New Provisional Waiver to Help Some Families Stay Together

Immigration Impact

Some families facing long separations from their loved ones because of U.S. immigration laws will have an easier time of it in 2013. Thanks to a new regulation from the Department of Homeland Security (DHS), immediate relatives of U.S. citizens will be able to complete part of the processing of their immigration cases without leaving the country. The “Provisional Unlawful Presence Waiver of Inadmissibility for Certain Immediate Relatives” rule, often referred to as the new family unity rule, will be published tomorrow (January 3, 2013) and become effective on March 4. 

DHS first proposed the change in procedure, which allows immediate relatives (parents, spouses, and children) of U.S. citizens who entered the country without permission to apply for a waiver of their unlawful entry while still in the United States, in April of 2012. The change in procedure was proposed as a solution to a growing problem—families were facing months, and in some cases, years of separation because of two conflicting provisions of U.S. immigration law.

Under the Immigration and Nationality Act (INA), a person seeking to adjust their status to lawful permanent resident must be admitted or paroled into the country if they wish to have their case decided in the U.S.  If they entered the country unlawfully, the law requires them to go to a U.S. embassy or consulate for processing of their application. Departure from the United States in many cases, however, triggers a three to ten year bar to re-entering the country, which requires a separate waiver application. Under past practice, an individual applied for the waiver after having been found inadmissible by a consular official and then had to apply to U.S. Citizenship and Immigration Services (USCIS) for a waiver.  The process was generally time consuming, inefficient, and often costly, particularly because it lengthened the amount of time families were apart.

For immediate relatives, at least, the new rule will streamline the process because they will not have to depart the U.S. until they have received notification that their waiver application has been “provisionally” approved, which means that they will be able to complete their visa processing in one step rather than two or three at the embassy.  Other applicants will continue to follow the standard process, including immediate relatives who may need other waivers for final approval of their Lawful Permanent Resident (LPR) status.

For the most part, the key provisions of the final rule remain unchanged from the proposed rule, despite pleas from many commenters to allow more people to take advantage of the new process and to clarify the rules for one of the waiver provisions (regarding proving extreme hardship to a U.S. citizen). DHS argued instead that it intends to take an incremental approach, beginning with a clearly recognizable group—immediate relatives of U.S. citizens—who are not subject to any visa limits under current law. Only after DHS assesses the effectiveness of the program for this group will it consider expanding to other groups, such as immediate relatives of LPRs or to any relative of a U.S. citizen, such as sons and daughters over the age of 21, who are eligible for a visa but are not classified as an immediate relative.

With respect to extreme hardship, which must be proved in order to obtain the waiver, DHS declined to create any regulatory criteria, arguing instead that extreme hardship is based on a totality of the circumstances that can’t be reduced to a single list of factors.

 

Separated by law: Families torn apart by 1996 immigration measure

Center for Public Integrity by Susan Ferriss

In a nation built by immigrants, they thought they could pursue their American Dream — with loved ones at their side. Instead, they're living an American nightmare that's tearing families apart and forcing Americans into exile. 

Chris Xitco, a native of Los Angeles, never imagined that after marrying his wife Delia in 2002 and trying to legalize her, she'd end up barred by U.S. officials for life, with no pardon even possible for 10 years. She now lives south of Tijuana, Mexico, alone with the couple’s two small children.

T.J. Barbour, a native of San Diego, has been struggling every day to care for a 10-year-old son, since his wife Maythe was deported and then barred from the United States in 2011 for what could be 20 years.

In central North Carolina, Anita Mann Perez has been financially ruined trying to raise three small children since her husband Jorge was exiled for 10 years in 2007. Now she's moved to Mexico to join him. 

Across the country, as illegal immigrants have settled into communities, they have met Americans, fallen in love, married and had children. But when Americans have voluntarily stepped up to sponsor their spouses for legal residency, believing this was the right thing to do, they’ve been shocked to discover their citizenship does not trump mandatory penalties the spouses must face. Far from it.

These penalties, which “bar” the spouses from the U.S. for years at a time, were instituted by Congress in 1996 specifically to punish immigration-related offenses.

Since then, the law governing such situations — and the way it’s applied —has taken a number of twists and turns. Over that time period, waivers have helped many people. And in January, President Obama announced a plan to tweak the procedure by which citizens’ spouses apply for residency, a change that could eventually spare many more families from long, painful separations. But the change isn’t likely to go into effect this year, and it isn’t retroactive. And while thousands stand to benefit, thousands of others simply won’t qualify for easier access to “hardship waivers” that the president proposes — and will be trapped by the small print of the 1996 law. (SEE SIDEBAR)

Under that law, if applicants for legal residency crossed the border once, and were “unlawfully present” for more than one year, they must be issued a 10-year bar from living in the United States. They can then apply for a hardship waiver to try to return sooner and take up legal residency. If applicants have a history of entering the United States multiple times illegally, they can be barred for life — and can only pursue pardons if they remain outside the United States for five, usually 10, sometimes 20 years. Being married to an American citizen may not help at all.

To complete their application process, people  who entered the United States illegally must go to their final interview at a U.S. consulate back in their home countries. Often U.S. consular officials must simply deliver the bad news immediately. And that’s that. The bar has begun, and the applicant cannot return.

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Comments Due on Proposed Rule that Will Help Keep American Families Together

Immigration Impact

The administration recently published a proposed rule that will help keep American families together. The “Proposed Rule on Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives” is an effort to streamline the application process for many relatives of U.S. citizens currently eligible for a green card by minimizing the amount of time that applicants would have to be away from their families before being admitted into the United States. The proposed rule is currently in its “comment period,” and advocates are encouraged to submit comments in support of the rule. All comments are due on June 1, 2012.

Why is this proposed rule important? Currently, thousands of persons who qualify for green cards must leave the U.S. to obtain their permanent residence status, but as soon as they leave, they are immediately barred from re-entering the U.S. for three or ten years because of a period of unlawful presence in the United States of more than 180 days. There is a family unity waiver available, but the way the law is currently implemented, the waiver can only be adjudicated overseas. Because the process can often take many months, many otherwise eligible applicants do not apply for their green cards, and choose to remain unauthorized in the U.S. rather than risk leaving the country and being unable to return.

Under the proposed rule change, spouses and children of U.S. citizens who apply for a green card, but need a family unity waiver to re-enter the United States will be allowed to apply for the waiver without leaving the U.S. This “in-country processing” proposal means that USCIS could grant a provisional waiver here in the U.S, and many applicants would not face the same waiting period outside the country. Applicants would still be required to leave the U.S. before receiving final approval and their green card. But eligible immigrants will be encouraged to go through the process rather than remain unlawfully in the U.S.

The proposed rule does not change the eligibility standards for green cards or waivers. It does, however, mean that waiver can be adjudicated here in the U.S. so that the immigrant will know whether or not he or she will be able to re-enter the U.S. after receiving the green card, which would make a huge difference in the lives of many U.S. families. Allowing these family members to have their waivers adjudicated in the U.S. may save them from long, potentially dangerous separations from their families.

It is critical that USCIS receive many comments in support of the proposed rule. They need to know that there is overwhelming support from the American people for keeping families together and fixing this glitch in immigration law. Submit your comment by e-mailing it to [email protected] with “DHS Docket No. USCIS-2012-0003” in your subject line on or before June 1, 2012.

 

DHS publishes proposed stateside waiver rule

The Department of Homeland Security published a proposed rule change Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives in the Federal Register today. 

This proposal would change DHS procedures to enable spouses and children of U.S. citizens physically present in the United States to apply within the U.S. for the waiver they need to become U.S. permanent residents. The current procedure requires the spouse or child to leave the United States, file the waiver application in the home country, and wait for processing while separated from their U.S. citizen loved ones.

The proposal would permit immediate family of U.S. citizens to apply for a provisional waiver of unlawful presence while remaining in the U.S., thereby minimizing the time they would be separated from their families during the process. To obtain the waiver, applicants would still need to meet the strict letter of the law which requires them to prove that family separation will cause their American citizen spouse or parent extreme hardship.

If the waiver is granted, the foreign national must leave the U.S. and apply for and receive an immigrant visa abroad before returning to the U.S. The change will give countless American families a chance to stay together safely and legally.

Provisional Unlawful Presence Waivers: Questions & Answers

The provisional waiver process is NOT in effect. USCIS will reject any application requesting a provisional waiver at this time and return the application and any fees filed. The provisional waiver process will only take effect after a final rule is published in the Federal Register with an effective date.

USCIS: Provisional Waiver Is Not In Effect

U.S. Citizenship and Immigration Services (USCIS) issued a release warning that the provisional waiver is not yet in effect:

USCIS is considering changes that would allow certain immediate relatives (the spouse,children or parents of a U.S. citizen) who can demonstrate extreme hardship to a U.S.citizen spouse or parent to receive a provisional waiver of the unlawful presence bars before leaving the United States.

These procedures are not in effect and will not be available to potential applicants until USCIS publishes a final rule in the Federal Register specifying the effective date. USCIS plans to publish a notice of proposed rulemaking in the coming months and will consider all comments received as part of that process before publishing a final rule.

• Do not send an application requesting a provisional waiver at this time. USCIS will reject any application requesting this new process and we will return the application package and any related fees to the applicant. USCIS cannot accept applications until a final rule is issued and the process change becomes effective.
• Be aware that some unauthorized practitioners of immigration law may wrongly claim they can currently file a provisional waiver application (Form I-601) for you. These same individuals may ask you to pay them to file such forms although the process is not yet in place. Please avoid such scams. USCIS wants you to learn thefacts about protecting yourself and your family against scammers by visiting uscis.gov/avoidscams.

If you already have an immigrant visa interview with the U.S. Department of State, we strongly encourage you to attend. The Department of State may cancel your immigrant visa registration if you fail to appear at this interview.

Proposed waiver rule will mean shorter separation of families

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.