An important change is pending in the federal regulatory system, and you can make an impact.
There are an estimated ten to twelve million undocumented immigrants in the United States at this time. Among these, a large number are not eligible for a process called Adjustment of Status because they did not originally enter the United States with a visa, meaning that they cannot “fix their papers” without first leaving the United States. However, the law also states that any person who leaves the United States after being unlawfully present for more than one year will be punished with a ten-year bar of re-entry. The only way for this ten-year punishment to pass is with time or by securing approval of an I-601 waiver.
The I-601 waiver is available to certain aliens who can show that their U.S. citizen or Permanent Resident spouses or parents would suffer “extreme hardship” if the ten-year bar were not cancelled, meaning that the family would either spend ten years separated or that the family members would have to relocate to another country. The “extreme hardship” standard is high, and it requires suffering that is beyond what one would normally expect from these circumstances. Depending on personal circumstances, timing, and luck, families may have to apply for an I-601 waiver again and again, spending hundreds of dollars and facing processing times commonly between eight months and two years. The current system creates enormous heartache and suffering for families seeking legal status in this country.
In January, President Obama proposed to change this system. He cannot change the laws on his own, but his administration has proposed a change to this process. Currently, an applicant must file an I-130 petition, attend an immigrant visa appointment in the country of origin and receive the ten-year punishment, and then submit the waiver application. From the time of the visa appointment until the waiver is approved, the family of those applicants must either live apart from their loved ones or relocate temporarily to countries they have never known.
Under the proposed rule change, the second and third steps would be reversed. Applicants could file for pre-approval of a waiver from the United States and then, if it is approved, return briefly to the country of origin before coming home to the United States as permanent resident aliens. This change could make the process much more predictable, less painful, and more attractive to families. For many families where one person lacks lawful immigration status, the uncertainty of the current I-601 process is a barrier to pursuing legal status. If the pre-approval (or provisional) waiver process is approved, many families may pursue legal status by taking advantage of this new, more humane process.
This is great news, and we strongly support approval of Proposed Rule USCIS-2012-0003. However, the process is very narrow and it should be expanded.
Under the proposed rule, only immediate relatives of U.S. citizens would be eligible for provisional waivers. This means that only the spouses and unmarried, under-21 children of U.S. citizens would be able to apply for a waiver from the United States even though the law permits I-601 waivers for adult children of U.S. citizens and for the spouses, minor children, and adult children of Permanent Residents.
Additionally, the proposed rule has many arbitrary limitations. Only applicants with one and only one basis of inadmissibility would be eligible for a provisional waiver. Applicants with other inadmissibility issues such as immigration fraud or criminal convictions would not be eligible, even though waivers based on the same hardship standard are available for those forms of inadmissibility. There are also other waivers of inadmissibility that are easier to get, such as permission to re-apply for immigrants who were previously removed and a waiver of “alien smuggling” involving close family members. The proposed rule does not permit stateside consideration of these waivers, and it seems to prioritize streamlining over consistency within the law.
Further, the proposed rule cuts out those who are currently in deportation proceedings as well as those who already have their immigrant visa appointment scheduled. The immigration court system is grossly overcrowded, and the proposed rule ignores a possibility to relieve this congestion by allowing certain individuals to close their deportation cases and pursue a provisional waiver that would allow them to go abroad and return to the United States with legal status. Additionally, the proposed rule penalizes families that were proactive and scheduled their appointments abroad by denying them access to a process that could make the pursuit of legal status much less painful. This is unfair.
In order for this change to be approved, the government must see sufficient interest and support among the public. You can comment in favor of this change by going to http://www.regulations.gov/#!documentDetail;D=USCIS-2012-0003-0001. You can also submit comments via email or by postal mail. The deadline for comments is June 1, 2012.
We have prepared an extensive comment in support of the proposed rule and requesting that the process to be expanded to help people besides the immediate relatives of U.S. citizens. We would encourage you to echo our official comments by referencing comment USCIS-2012-0003-1704 in addition to including your own personal note. You can see our comment at http://www.regulations.gov/#!documentDetail;D=USCIS-2012-0003-1704.
Even easier than commenting through the Regulations.gov Web site, you can sign our petition on Change.org. In just a few seconds, you can join our call for approval and expansion of the stateside I-601 process. You can find the petition at http://www.change.org/petitions/approve-expand-stateside-immigration-waivers
Many of you know someone who has gone through this difficult process or who is undocumented and will need to apply for a waiver in the future. Some of you and your loved ones have already gone through this process and know how hard it is. In the spirit of solidarity, we would ask each of you to comment in support of this positive change. Please also pass on the word to anyone you know who may be supportive.