There is much excitement and confusion about the Obama administrations proposed new rule on how waivers for unlawful presence, filed by immigrant visa applicants, are processed by the U.S. CIS. This will discuss the change in what are hopefully clear terms, to help readers make decisions about whether to pursue such a waiver.
First, it's important to understand how the law is structured to give the reader a context into which this new proposed rule can be sorted. Federal laws are made by Congress, and signed into law by the President. The federal immigration law is called the Immigration & Nationality Act ("INA"), and can be found here. It is a God-awful mess of a law, because it is a hodgepodge of at least 10 different pieces of legislation, through 10 different Congresses. Picture a once nicely patterned quilt (the 1952 Act); now picture that same beautiful quilt cut-up, reassembled, with different colors, shapes and sizes of quilt added - that picture is what we have to work with in our current immigration law in formulating a policy that works. Which is one reason why it doesn't. It has been said that the only more difficult piece of legislation to understand in American law is the tax code. I would argue that the tax code is second to the immigration law, and many, including some federal judges, would agree. The Executive, through its delegates, makes rules to implement how the federal law will be carried out by the various U.S. agencies. In this case, the U.S. CIS proposes the rules, and the rules are called Federal Regulations ("CFR"). They are subservient to the federal statutes. What has happened with the Obama proposal is that the U.S. CIS actually proposed (at the urging of the White House) a new CFR changing the way a certain part of the INA will be administered. This change carries significant impact for spouses and children of U.S. citizens for the following reasons.
Editorializing aside, the 1996 immigration legislation, known as IIRIRA, added certain ground of inadmissibility to the existing INA, under the now-existing Sec. 212 of the INA. These grounds of inadmissibility are also known as 'bars', because they essentially define groups of people, who even if otherwise eligible to immigration (with a green card), cannot, because of their past criminal or immigration violations. Two of the added grounds are for potential immigrants who accrued 'unlawful presence' in the U.S. for certain lengths of time, and left the U.S. Here is where it gets complicated: for the spouse of a U.S. citizen, applying for a green card, these bars don't matter if the foreign national is eligible for adjustment of status - that is, applying for their green card while remaining in the U.S. But not everyone is eligible to adjust status, including a large group of people who entered the U.S. without inspection (illegally). Those folks, no matter whether they are married to a U.S. citizen, can only get their green card by leaving the U.S. and engaging in what is called consular processing in their homeland. To do so, they must first leave the U.S., and if they've been in the U.S. unlawfully for more than 6 months, they will need a waiver to re-enter. Those waivers are tough to get, because they require a showing of extreme hardship to their U.S. citizen spouse if the waiver is denied.
Waiver applications are a bit of an art form. They require a sound strategy of understanding what the law requires through analyzing existing precedential decisions, as well as helping an applicant assemble the necessary evidence to support the claim. The quality of the lawyer completing the waiver is directly proportional to the chances of success. The waiver has to stand out from the thousands of others the immigration officers see. There has to be a legitimate theme, supported by the evidence, and argued within the existing law.
Under the existing regulations, which the Obama White House and the U.S. CIS has proposed to change (the proposed regulation is here) the way waivers are processed. Instead of having to travel to one's homeland, apply for the visa, and then apply for the waiver separately - a process that leaves families separate for months at a time, even when the waiver is granted - the applicant will seek the waiver in the U.S. before leaving to have the green card granted in their homeland. In other words, they will leave the U.S. with the waiver in hand, and with a certainty of returning. The DHS's own summary can be found here.
In summary, the new rule will accomplish the following:
1. Waivers of inadmissibility, including those for the three and ten-year bars, will be applied for by the foreign national in the United States, before having to leave for the visa issuance;
2. The new rule does not change the permanent bars for recidivist immigration violators;
3. The new rule is not an amnesty of any stripe; it simply changes the procedure by rule, which is done with regard to every federal law by the U.S. CIS. It is not a departure from procedure as alleged by Republicans and restrictionists, in any way.
The new process will also not make obtaining the waivers any different in terms of the level of hardship necessary, because that threshold is established by federal law. It will still undoubtedly be difficult, and competent legal representation will continue to be essential to maximize your chances of success.
Carpenter & Capt, Chtd. has will provide waiver services to residents of all fifty states, and plans to maintain new offices for intakes in California (San Diego) Texas (San Antonio and Harlingen), Florida (Miami and Orlando), Michigan (New Buffalo and St. Joseph) and Illinois (Chicago) by the time the new rule is implemented. Stay tuned for details!
