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Possible Immigration Change Could Keep Families Together

by Christopher M. Pogue, Esq.

The US Citizen & Immigration Service (USCIS) has recently proposed a change in the way it processes 601 Waivers for undocumented individuals in the U.S. who are married to U.S. citizens. The proposed rule was posted in the government's Federal Register on January 6, 2012. The new plan - if it is implemented - would reduce the time that US citizens are separated from their spouses and children while those family members return to their home country to complete the process of becoming legal immigrants to the United States."

Under the current process, a U.S. citizen must file an application (Immigrant Petition) with USCIS and prove eligibility including spouse or parent family relationship and financial ability to live in the U.S. without any government assistance. If approved, the case gets sent to a U.S. consulate in the foreign nationals' home country for a personal interview. At the interview, the person who was in the U.S. undocumented has to request a waiver of the undocumented status --- essentially asking for "forgiveness" because not being able to live in the U.S. would result in "extreme" hardship to the U.S. citizen spouse or child. At some consulates, the decision on the waiver is not made until several months after the interview. Meanwhile, the family is separated from one another while waiting for a decision on the waiver. And if the waiver is ultimately denied, the person does not get to re-enter the U.S. --- thereby, potentially creating permanent separation.

But under the proposed system, the waiver application could be processed in the U.S., just as the initial Immigrant Petition is processed. A person could receive the "waiver" before leaving the U.S. for the visa interview. If the person meets all other criteria for residence in the U.S., the person can be issued a visa to return to the U.S., potentially with less than a month of absence from the U.S.

It's important to note that the change has not become final yet. And it does not change the legal requirement to legalize status. Applicants will still be required to show that that they deserve forgiveness for their unlawful status based upon "extreme hardship" to a US citizen spouse or child. That is, the extreme hardship the U.S. citizen spouse or child would face in having their spouse removed from the U.S. far outweighs the problem of the foreign national's undocumented status.

While USCIS states that it is possible for a denial of a 601 Waiver submitted under the new process to trigger a Notice to Appear (NTA) in Removal proceedings, the actual likelihood is small. Don't forget that there is already enough information in the immigrant petition alone for USCIS to issue an NTA. Under current enforcement guidelines, NTA's are being issued only where there has been a denial of an immigration benefit that leaves a foreign national out of status or the foreign national is connected in some way with a criminal or national security threat. The average applicant likely has no fear of receiving an NTA.

About The Author

Christopher M. Pogue prior to practicing law, he was a Fellow with the Urban Morgan Institute for Human Rights and the Senior Book Review Editor for the Human Rights Quarterly (HRQ), published by The Johns Hopkins University Press. The “HRQ is widely recognized as the leader in human rights” journalism. It presents current work in international human rights research and policy analysis, reviews of related books, and philosophical essays probing the fundamental nature of human rights as defined by the Universal Declaration of Human Rights. In the community, Christopher volunteers time on behalf of low income clients referred from the Legal Aid Society of Greater Cincinnati Volunteer Lawyers Project. He is member of Ohio State Bar Association Cincinnati Bar Association American Immigration Lawyers’ Association, Cincinnati Law Library Association, Greater Cincinnati Criminal Defense Lawyers Association.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.