So Close and Yet So Far: How the Three- and Ten-Year Bars Keep Families Apart

Posted on by Ruby Powers in Consular Processing, I-601 Waivers, Immigration Law, Immigration Trends, Legislative Reform, Processing of Applications and Petitions 1 Comment

From Immigration Policy Center

Most Americans take it for granted that marriage to a U.S. citizen and other family relationships entitle an immigrant to a green card, but there are barriers that often prevent or delay these family members from becoming lawful permanent residents, even if they are already in the United States.  Among these barriers are the “three- and ten-year bars,” provisions of the law which prohibit applicants from returning to the United States if they were previously in the U.S. illegally. Thousands of people who qualify for green cards based on their relationships to U.S. citizen or lawful permanent resident relatives leave the U.S. to obtain their green card are caught in a Catch-22—under current law they must leave the country to apply for their green card abroad, but as soon as they leave, they are immediately barred from re-entering the U.S. for three or ten years.

The Secretary of Homeland Security may waive the bar to admission if extreme hardship to a spouse or parent can be established.  But there are no waivers available for others, even if it would mean hardship for U.S. citizen children.  Unfortunately, current policies and interpretations of these provisions have made it difficult—and sometimes impossible—for many deserving applicants to obtain a waiver, especially if they initially entered the country illegally.  Under current DHS policy, applicants must apply for the waiver from abroad, sometimes waiting months or years in another country before they learn whether the waiver has been granted and whether they will be permitted to return to their loved ones in the United States.

In other words, immigrants who have a chance to legalize their status are not able to do so because of a combination of overly punitive immigration laws and the rigid interpretations of those laws currently followed by DHS and Department of State. Immigrants have to choose between leaving the country and taking the risk they might not be able to return, or remaining in the country illegally.  Where waivers are available, many of the immigrants most likely to be able to show extreme hardship are afraid to leave the country precisely because of that hardship.  For example, a wife with a disabled husband must choose between departing the United States to get right with the law or taking care of her U.S. citizen husband.

Many have argued that the process need not be so complicated or unforgiving and that changes in existing policy could allow for the consideration of waivers before the applicant departs the United States.  In order to understand how this issue affects the immigration debate, this IPC Fact Check provides background on the three- and ten-year bar issue.

What Are the Three- and Ten-Year Bars?

Sections 212(a)(9)(i) and 212 (a)(9)(ii) of the Immigration and Nationality Act (INA) impose re-entry bars on immigrants who are present in the U.S. illegally for a period of time, leave the U.S., and want to re-enter lawfully.  An immigrant who enters the United States without inspection (illegally), or who overstays a period of admission by more than 180 days, but less than one year, and who then departs the U. S. voluntarily, is barred from being re-admitted or re-entering the United States for three years.  If an immigrant is in the country illegally for more than one year, a ten year bar to admission applies.

Who Must Leave the U.S. for a Green Card and Why?

U.S. citizens and legal permanent residents may petition for green cards for certain family members.  Sometimes the immigrant family members are outside of the U.S. when the petition is filed and when the visa becomes available, and sometimes those family members are already residing within the U.S. while they wait for their petition to be adjudicated and their visa to become available.  Those in the U.S. may be here legally on a visa, or they may have come on a visa but that visa expired, or they may have entered the U.S. without proper documentation.

If the applicant for a family-based green card is the spouse, parent, or child under age 21 of a U.S. citizen (immediate relatives) AND if the applicant entered the U.S. with a valid visa (such as a visitor or student visa), that applicant may, in most cases, get their green cards in the U.S. through a process called “adjustment of status.”

However, all other people applying through the family-based system must go abroad and apply for their visa at a U.S. consulate in a procedure known as “consular processing.”    The adult children and siblings of U.S. citizens, as well as the spouses and children of legal permanent residents, must leave the country to get their green cards, whether they initially entered on a legal visa or not.

Are Waivers of the Three- and Ten-year Bars Available?

A waiver of the three- or ten-year bar is available only where extreme hardship to an applicant’s citizen or permanent resident spouse or parent can be established.  Hardship to the immigrant himself is not a factor, and hardship to the immigrant’s children is not a factor (even if the children are U.S. citizens).

The current system for processing and adjudicating these waiver requests requires immigrants to leave the U.S. and receive a formal determination of inadmissibility by a U.S. consular officer before a waiver application can even be submitted. Then the immigrants must apply for waivers of the three- or ten-year bar from outside the United States. In Ciudad Juarez, Mexico, one of the busiest consulates handling green card applications and waivers, there is currently a two to three month wait between submitting an application to the State Department and receiving a waiver interview with a USCIS representative.  Approximately half of those applications can be decided immediately while the rest are sent to the United States for further review; the waiting time for that review can vary significantly, but averages at least another twelve months.  Of course, not all waivers are granted, and those immigrants may not reunite with their family members for years. An appeal of a denied waiver can take up to 28 months or longer before the Administrative Appeals Offices adjudicates the appeal. This means longer periods of separation for family members.

What is wrong with the waiver process?

The current process is filled with inefficiencies and uncertainties.  It prevents a portion of the unauthorized population from getting legal status.  It breaks up families—often for a prolonged period of time.  It also exposes thousands of people to violence and danger because most waivers are filed in Ciudad Juarez (approximately 75% of the 22,000 I-601 waivers filed in 2009 were processed through Ciudad Juarez), a consulate located along the U.S.-Mexico border.  The city is wracked by drug violence, and the Department of State has issued travel advisories urging citizens to avoid Ciudad Juarez.

Other critical weaknesses in the system include:

  • Requiring adjudication of the I-601 waiver only AFTER departure from the United States.  The three- and ten-year bars to admissibility take effect only after an individual has left the United States.  But USCIS officers may not consider waiver applications while an individual is in the U.S.—even if available evidence clearly establishes that departure from the United States will, in fact, make a waiver application necessary.
  • Processing delays even in the best of circumstances.  Approximately 49% of waivers are adjudicated and granted within seven days at Ciudad Juarez.  The rest have to remain in Mexico for up to 12 months or until the waiver is approved.  Overseas processing is enormously complicated and bureaucratic.  An applicant must first meet with a consular officer from the Department of State (DOS), be told that a waiver is required, wait for the case to be referred, obtain and wait for the appointment with USCIS, wait for the adjudication, and then get a new appointment with DOS if the adjudication is granted.  Current wait times for the initial appointment with USCIS are 2 to 3 months, meaning that even under the best of circumstances, an applicant will have to be outside the U.S. for at least 3 months.
  • Uneven application of the extreme hardship standard.   Extreme hardship in the waiver context is determined by an analysis of the totality of the circumstances affecting the U.S. citizen or permanent resident relative who filed the petition.  Over the years, case law has led to a series of generally considered factors, including family ties, age, health, financial impact and country conditions.  Because the standard is subjective, it is open to a wide range of interpretations, making it difficult for applicants to know what materials or arguments should be submitted. This can extend the process significantly if you don’t “get it right” the first time the waiver is submitted.
  • Inefficiency and high costs.  Posting additional U.S. officers overseas to adjudicate cases and shuttling applications for waivers between agencies costs the government money and time.   The State Department currently charges USCIS $131 simply to receive and transfer each application for a waiver to USCIS.

What can be done?

  • Repeal three- and ten-year bars.  Congress can repeal the portions of the INA that created the bars in 1996, and this would eliminate the catch-22 inherent in obtaining a green card.
  • Allow applicants who entered as minors to adjust status within the U.S.  Immigrants who entered the U.S. as minors were often brought by their parents, due to no fault of their own.  They may never have visited the country of their birth, have no support networks there, and may not even speak the language.  These applicants should not be forced to return to a country they do not know and face the possibility of separation from their family members.
  • Adjudicate hardship waivers in the U.S.  It is possible to create a process that would minimize the length of time an immigrant would have to spend outside the U.S. and minimize the risk of being barred from re-entry.  Hardship waivers could be processed in the U.S.  Once the I-130 petition for a green card has been approved, the applicant could submit a hardship waiver application for pre-adjudication.  USCIS could review, request additional evidence, and issue a recommended approval that would be transmitted to DOS for final adjudication.  That way, when the immigrant leaves the U.S. to go to the consulate, he would already know whether the hardship waiver has been conditionally approved.
  • Expand guidance on the extreme hardship standard.   USCIS is already engaged in a review of the extreme hardship standard based on complaints that it is not consistently applied.  The agency should share the results of that review and solicit public feedback and comment and should then establish clear guidelines for making extreme hardship decisions.  Centralizing all waiver adjudications within the U.S. could have the added benefit of ensuring greater quality control and a more consistent standard, especially if waiver adjudications were consolidated into a special unit within USCIS.

Conclusion

Critics of the three- and ten-year bar find the penalties themselves unnecessarily harsh, but the existence of a waiver for spouses and children means that many families can be re-united.  The real issue involves the ease with which waivers can be processed.  While there may be disputes about how far the agency can go to address the impractical and harsh consequences of the three-and-ten-year bar, numerous legal experts believe that the agency has the authority to determine waiver requests while the applicant is still within the United States.  Taking this action promotes both family unity and government efficiency.

Revisiting current interpretations of laws like the three- and ten-year bars will not change the need for comprehensive immigration reform, but it will allow more people who are already eligible to obtain a green card the chance to do so without undermining existing laws.


USCIS Seeks to Unify Families Facing Separation through Revised Waiver Process

Posted on by Ruby Powers in Consular Processing, I-601 Waivers, Immigration Law, Immigration Trends, Legislative Reform Leave a comment

From Immigration Impact

Today, the administration took another important step toward fixing one of the most notorious problems with our broken immigration system—the 3 and 10 year bars. The U.S. Citizenship and Immigration Services (USCIS) announced today that it was filing a notice of intent to change a rule which would streamline the application process for many relatives of U.S. citizens currently eligible for permanent resident status, thereby minimizing the amount of time that applicants would have to be away from their families before being admitted into the United States.

Under current rules, thousands of people who qualify for legal status must leave the U.S. to obtain their permanent resident status, but as soon as they leave, they are immediately barred from re-entering the U.S. for 3 or 10 years because of their unlawful presence in the United States. Many are eligible for a family unity waiver (which waives the bar to admission if extreme hardship to a spouse or parent can be established), but the way the law is currently implemented, the waiver can only be applied for from overseas That process can often take many months or even years, deterring otherwise eligible applicants from applying for legal status who instead remain unauthorized in the U.S. rather than risk separation from their families. (For more information on 3 and 10 year bar, see this fact sheet by the Immigration Policy Center.)

Under the proposed “in-country processing” rule change, spouses and children of U.S. citizens who apply for residence, 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. The new rule seeks to help only spouses and children of U.S. citizens, not spouses and children of legal permanent residents, and does not alter or revise the eligibility standards for green cards or waivers. The proposed new rule would only affect persons whose sole need for a waiver is based on having lived in the U.S. without authorization (persons seeking a waiver on other humanitarian grounds must still leave 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.  It is important to note that applicants would still be required to depart from the U.S. before receiving final approval and legal status.  But eligible immigrants will be encouraged to go through the process rather than remain unlawfully in the U.S.

Although the actual rule change will not go into effect for several months—a “notice of intent” to change the rules governing the adjudication of waivers for the 3 and 10 year bars was published in today’s Federal Register and will be followed by a call for comments and a comment period—the revision will make a huge difference in the lives of many U.S. families.

Applicants currently face long separations from their U.S. citizen family members as well as dangerous situations while they wait.  Many waivers are processed in Ciudad Juarez, Mexico, a city wracked with violence over the last several years.  This small step of allowing these family members to apply for and receive waivers inside the U.S. may save them from long, potentially dangerous separations from their families.

Some may argue that this rule change is an example of the president overstepping boundaries and bypassing Congress to reform the immigration system. These claims are wrong. While Congress writes the laws—including the 3 and 10 year bars—the executive branch decides how to execute the laws through rules and regulations which align with their priorities and current agency resources.  The waivers are currently processed overseas because of an administrative rule, and the current administration has every right to change that rule, just as all administrations before them.

The Obama administration is proposing a rule change that will partially ameliorate one of the most contradictory rules of immigration law, thereby encouraging legal immigration and helping to keep U.S. families together.


DHS Announces Planned Changes to I-601 waiver for Unlawful Presence Waivers

Posted on by Ruby Powers in Consular Processing, I-601 Waivers, Immigration Law, Immigration Trends, Legislative Reform Leave a comment

The January 6, 2012, DHS Announcement about
Planned Changes to Processing for Unlawful Presence Waivers
Frequently Asked Questions
What was announced on January 6?

On January 6 DHS announced, in a notice to be
published in the Federal Register on January 9 that it will be issuing new regulations for
how unlawful presence waivers will be processed for certain immediate relatives who are
filing immigrant visa applications abroad. Specifically, the new procedure will allow
these individuals to file for a provisional unlawful presence waiver and await
adjudication while in the U.S. If approved, they will still have to depart the U.S. to
undergo visa processing and an interview at a U.S. consulate abroad. To receive a
provisional waiver, they will still need to show that a lengthy bar from the U.S. would
cause their U.S. citizen spouse or parent “extreme hardship.”
What is the current process and why is the change necessary?


Currently, many relatives of U.S. citizens and lawful permanent residents face
unnecessary and dangerous bureaucratic hurdles when they apply for lawful permanent
residence (“green card”). In order to be granted permanent residence, these applicants
are required to travel to a U.S. consulate in their home country to be interviewed and wait
for the visa to be processed. But departure from the U.S. triggers a 3- or 10-year bar to
re-entry for many applicants—specifically those who have been unlawfully present in the
U.S. for more than 180 days.
Individuals subject to this re-entry bar may apply for a waiver (using DHS Form I-601;
see 8 U.S.C. 1182(a)(9)(B)(v)) so that they do not have to face years of separation from
their family. To qualify, they must demonstrate that their U.S citizen or permanent
resident spouse or parent would experience “extreme hardship” if the waiver is not
granted. But under the current process, the individual can only apply for the waiver in
the home country, after having had an initial interview at the consulate. The decision on
the waiver, which is made by USCIS even though the family member is abroad, often
takes weeks, months or even years to be completed. Meanwhile, families are separated,
and the spouses and children of U.S. citizens and lawful permanent residents are forced to
endure potentially dangerous situations in the home country until the waiver is granted
and they can return to the U.S. as lawful permanent residents.
Immigration law provides that U.S. citizens and lawful permanent residents can apply for
“green cards” for their foreign-born spouses and children. But the lengthy delays and
risks in the current waiver procedure discourage many family members from completing
the process of legal immigration. Family members have been assaulted or killed while
waiting for waivers to be reviewed.
What will the new process be?


The new procedure will allow certain immediate relatives—spouses, children and parents
of adult of U.S. citizens—to apply for waivers of the unlawful presence bars while
remaining in the U.S. If the individual is found eligible, USCIS will grant a provisional
waiver. He or she will still have to depart the U.S. and visit a U.S. consulate abroad to
apply for an immigrant visa. During the immigrant visa interview, the consular officer
will make the finding of inadmissibility based on unlawful presence and apply the
provisional waiver. If other grounds of inadmissibility are found, the individual would
need to submit another waiver application, if eligible, while abroad. In many cases, the
provisional waiver will reduce the wait period abroad and the separation from the
applicant’s family by several months or years.
Individuals will still need to meet the extreme hardship standard established in existing
law to obtain a waiver. The January 6 notice states that USCIS does not intend to modify
the standard.
Who will be able to use the new process?
As announced in the January 6 notice, the new regulation will change the application
process only for immediate relatives whose U.S. citizen spouse or parent would suffer
extreme hardship if the bar is not waived.
Who is left out of the new process?
According to the January 6 notice, the new process will not apply to family members of
lawful permanent resident petitioners. It will also not include immediate relatives if their
qualifying relative for the hardship waiver is not a U.S. citizen spouse or parent. These
individuals will still need to apply under the existing procedure (departing the country
first and applying for the waiver while abroad). There is no valid reason not to apply the
same procedure to these individuals whose spouses and children face the same
bureaucratic delays, obstacles and dangers when required to wait abroad for their waiver
adjudications.
The new procedure will apply only to individuals who are subject to the 3- and 10-year
bars for unlawful presence. Individuals who are subject to other grounds of
inadmissibility are not affected under the new process and will still have to depart the
U.S. before applying for any waiver.
When will the new regulations and process be implemented?


The new provisional waiver procedure has not yet taken effect. The notice issued on
January 6 announces the government’s intent to issue a proposed regulation at a future
date. Next, DHS will issue a Notice of Proposed Rulemaking (NPRM) that will include a
proposed regulation governing the waiver process and will invite public comment. The
notice states that the new waiver process will not be implemented until a final rule is
issued and the change becomes effective.
What should current and prospective waiver applicants do at this time?
The January 6 announcement has not changed anything in the current waiver procedure.
The notice discourages the filing of applications for provisional waivers and states that
such requests will be rejected. The new procedure will not take effect until a final
regulation is issued.
Once the new procedure takes effect, individuals with pending applications for unlawful
presence waivers will not qualify under the new procedure.
What is the cost for applying for a waiver under the new procedure?


The January 6 announcement does not mention a change in the application fee for filing a
waiver application (Form I-601). The current fee is $585.
How will the new procedure improve government efficiency?

Under the current
procedure, waiver applications are filed by individuals who have departed the U.S. and
are applying at U.S. consulates abroad. However, those waiver applications are not
adjudicated by the U.S. consulate. Instead, they are forwarded to USCIS. Wait times for
processing waivers can be months or years. Processing these applications in the U.S. will
save government resources at the consulates and reduce the costs of shifting cases back
and forth between government agencies.


Snapshot: I-601 Waiver in Juarez, Mexico – Pilot Program – Mexican Pilot Program

Posted on by Ruby Powers in Consular Processing, I-601 Waivers, Immigration Law Leave a comment

The Mexican Pilot Program provides a process for the rapid adjucation of waiver applications by USCIS. The process can be broken down into four distinct steps:


1. Inadmissibility

The process begins at the IV consular interview when an alien is deemed inadmissible on awaivable ground by a consular official. The applicant can then schedule a waiver appointment by calling the Call Center.


2. Waiver Appointment

At the waiver appointment, the consular official handling the case will pass the waiver to the adjudicating USCIS officer in the neighboring room. The USCIS officer will then make a 5-minute review and conduct immediate judgment on the waiver. If the USCIS officer approves the waiver, then the file is returned to the consular official and the official then grants the immigrant visa either in approximately 1-3 weeks. If the officer determines that the waiver is not clearly approvable it is referred to the original adjudication process.


3. Original Process

If the applicant has been referred to the original adjudicating process, then the applicant must wait until the USCIS office has reviewed their file. Due to a backlog, this review can take up to a year. The USCIS officer in charge of reviewing their file will either approve their waiver or deny it. If approved, the waiver is sent to the consular office where the official will grant the immigrant visa in approximately1-3 weeks. If denied, the applicant can either  appeal to the Administrative Appeals Office (AAO) or apply again with new evidence and circumstances.***


4. AAO – Administrative Appeals Office 

If the applicant is denied and chooses to appeal, they are presented with two options. They may either choose to appeal directly to the AAO, in which case the consular office will give one final review of the file before sending it to the AAO, or they may request that the case be reopened and the decision reconsidered by the consular office. In the case of the former, if the AAO denies their appeal, then the applicant must submit a new waiver and restart the process to receive further consideration. In the case of the latter, the consular office will give a final verdict on the file with no further referral or adjucation. As with the AAO option, if the applicant is denied then they must restart the process to receive further consideration. If the applicant is approved through either one of the options then the immigrat visa is granted.

*** The Law Office of Ruby L. Powers has assisted several waiver denials in which the client either: 1. hired a ‘notario,’ 2.  filed the waiver application themselves, or 3. hired another immigration attorney, and Firm was able to get the waiver approved on the second try.


Man who saved girl says he’s illegal immigrant

Posted on by Ruby Powers in Immigration Law, Legislative Reform Leave a comment

Man who saved girl says he’s illegal immigrant

Married to U.S. citizen, New Mexico resident becomes poster child in debate

By JERI CLAUSING

updated 8/19/2011 7:00:53 PM ET
ALBUQUERQUE, N.M. — The man who chased down an alleged child abductor and saved a 6-year-old girl from what could have been a horrible fate will be honored as a hero Friday. But he is also gaining a new kind of celebrity: as a poster child of sorts for immigration rights in state and national immigration debates.

Facebook

YouTube

LinkedId