The New York Times has reported that the Obama administration is considering implementing a new policy that will provide for the pre-adjudication of hardship waivers for undocumented individuals inside the United States that are married to United States citizens. The details of the policy change have not been reported at this time, so I don't want to go into every possibility until I have something on paper to go on. That being said, it is impossible to overstate the impact that this change in policy potentially could have, as it may provide a realistic and incentive-laden path for certain individuals with substantial ties to this country to follow the law and become documented.
The reason that this potential change in policy is so meaningful is that if a person did not first enter the United States legally they are ineligible to apply for their Green Card inside the country even if they are married to a United States citizen. To be eligible to apply for your Green Card inside the United States (adjustment of status) the law requires that you must first be "inspected" by an officer and then either "admitted" or "paroled" after inspection. Basically, this means that if you "snuck into the country" you can't apply for your Green Card here.
As a result, if you came here without inspection to get a Green Card you must first leave the U.S., and you may only return after an immigrant visa is issued by the Department of State.
So what's the problem?
The first problem is that in the vast majority of cases when the individual leaves the country they trigger either a three or a ten-year bar if they have been unlawfully present inside the United States for more than 180 days (3 year bar upon departure) or one-year (10 year bar upon departure) .
The second problem is that there is no guarantee that a waiver will be approved, and once you depart you may be separated from your family for years.
To paraphrase the Clash: "Should I stay or should I go? If I stay there will be trouble, If I go there will be double."
So the waiver that the Obama administration is planning to pre-adjudicate cures the three or ten year bar in cases for people that are able to establish that it will cause an extreme hardship to their United States citizen spouse or parent should they not be permitted to return to the country with a Green Card. Once they have an approval in hand they can depart the United States to attend their visa interview, and hopefully return to be reunited with their family as a lawful permanent resident with minimal delay.
Sounds pretty damn good on paper, and it may be, for many, many people.
Director Alejandro Mayorkas has stated that: "The goal is to substantially reduce the time that the U.S. citizen is separated from the spouse or child when that separation would yield an extreme hardship.”
Thank you President Obama for giving us a reason to have the audacity to hope for some change.
So that's the half-full side of the equation...
Now for the half-empty.
The reality is that the determination of what constitutes "extreme hardship" varies depending on who is reviewing the waiver application, or in simpler terms, no hardship waiver is a slam-dunk. For example, although there are guidelines that are supposed to be utilized, they are subjectively interpreted, often ignored, and there is no judicial review of denials.
The factors for determining extreme hardship include:
- Presence of LPR/USC family ties in the United States;
- Your qualifying relative's ties outside the U.S.;
- Conditions in the country of relocation;
- The financial impact of departure; and
- Significant health conditions particularly when tied to the unavailability of suitable medical care in the country of relocation.
Mind you, the hardship to the person who needs the waiver, and hardship to a minor child is not a factor for consideration, so it makes no difference if you have a house full of U.S. citizen children that you are supporting that will suffer an extreme hardship from your separation.
Although this policy change is obviously a fantastic step in the right direction, I must remain cautiously pessimistic until I see how things play out in practice.
And President Obama, if you are reading this, why don't you just consider issuing humanitarian parole to certain individuals who are otherwise adjustment eligible but for the fact that they entered without inspection? This would circumvent the requirement of the waiver, and would take the subjectivity out of the determination of what constitutes extreme hardship. The Bush administration did this for one of my clients with a high-profile case, so I know that it can be done.
All that would be required is for an individual to establish that they are eligible for adjustment of status other than the manner of their admission, and that they do not possess any other adverse disqualifying factors such as criminal convictions, or repeat violations of U.S. immigration law. This would potentially cut down on the time required to adjudicate waivers, as approval would be objective rather than subjective, which would result in a savings to the taxpayer.
Just a suggestion.
Click here to read the New York Times article
Matthew Kolken is a trial lawyer with experience in all aspects of United States Immigration Law including Immigration Courts throughout the United States, and appellate practice before the Board of Immigration Appeals, the U.S. District Courts, and U.S. Courts of Appeals. He is admitted to practice in the courts of the State of New York , the United States District Court for the Western District of New York, the United States Court of Appeals for the Second Circuit, and is a member of the American Immigration Lawyers Association (AILA).