This is why we need reform. This is similar to what happened to my client Jacobo. In this case, a girl who was brought to the US illegally when she was 2 and knew nothing of Mexico, had to go back to Juarez, one of the most dangerous cities int he world, for her interview. Her US Citizen husband was killed while he was there with her.
I have been communicating with a lovely woman who is an ESL teacher in Missouri that was moved to action after reading about our strong showing in Jeff City last week to testify against SB590. While she could not take off of work to drive there she did prepare a heartfelt letter to send to Mr. Kraus from the very important point of view of a teacher working with English Language Learners (ELLs) and the chilling effect that this type of bill will have on her interaction with the students and her parents. I have gotten her permission to post the email exchange, to illustrate how Mr. Kraus, along with others that support his type of legislation are completely ignorant about our actual immigration system. Even confronted with the clear proof that the assumptions and facts that supposedly are the impetus for this law are actually wrong (not his opinion on immigration mind you but the “facts” he testified that led him to propose this law), Mr. Kraus refuses to even entertain the idea that what he has concocted in his head as the truth is in fact incorrect. What kind of leader is he that would stubbornly cling to his proposal even when it is proven that the underlying premies is as real as a unicorn. Speaking of unicorns, it would be easier to convince my 4 year old niece that they do not exist than to get a politician to admit that his research was faulty, his logic is ludicrous, his proposal was ill conceived or that after receiving new information and examining a problem based on that new information he has decided that his old idea is now not a good one.
As Mark Twain said, “you are entitled to your own opinion, not your own facts.” Mr. Kraus, just because you really really really want something to be true because it fits neatly into your paradigm does not mean it is. I am sorry. What I think bothers me the most is that he was sitting in that hearing room listing to all of those people testify. Community leaders, religious workers, heads of archdiocese, Presidents of School Boards, Former police men, Immigration Attorneys, Community Members, Teachers, Students, Principals, Heads of Organizations that deal with New Refugees, Crime Victims, Domestic Violence. He sat there and listened to some very emotional testimony and some very fact based and practical of the problems with his law. He sat there and still he responds like he does on his last email, obviously having done no further research to see if the points that the people who know way more about our immigration system than he does brought up. Not one inch has he cracked that closed mind in response to some very valid points that were presented in testimony. Of course he may not have been listening at all because he spent most of the time messing with his smart phone…plants vs. zombies can be so addictive.
It is so tired to hear this same line of “reasoning” from people like him, because it is clear that he has no interest in making a bill that is GOOD for Missouri, in light of the overwhelming number of people who are against the bill. He has chosen to remain purposeful and willfully ignorant despite all the evidence that was presented against his position. That is not the mark of an effective leader. It is not blindly proposing idiotic, costly unfunded mandates and then sticking your fingers in your ears and yelling “I’m not listening I’m not listening” when challenged. It is about researching an issue before wasting everyone’s time and money by proposing it and then listening to the pros and cons of both sides and revising your proposal according to the new information you have.
So here is the email exchange. I have left out the ESL teacher’s name at her request so she does not have problems with her district. Other than that I have not edited at all. After the exchange I will further explain why Mr. Kraus is wrong.
Original Letter from a Real Missouri ESL Teacher
Sent: Sunday, January 22, 2012 11:20 AM
To: Will Kraus
Subject: SB 590
January 23, 2012
State Senator Will Kraus
201 W. Capitol Avenue
Jefferson City, MO 65101
Dear State Senator Kraus,
Imagine being a kindergartner who doesn’t speak English well. Now, imagine the school staff and ELL (English Language Learners) teacher interrogating you and your family about your immigration status. Instead of looking forward to school, now, you are scared of the people who are there to help you. Do you know the saddest part about this scenario? It is the fact that legislators like you are happy about it because you hope it will scare ELL families out of Missouri. Not only does this show that you don’t understand what this will do to our economy and schools, but it shows you don’t care. Shame on you!
Under Title VI, all of these children have a right to a free and appropriate education. It is my job to teach them English, not be an agent for the I.N.S. Many of these children are already United States citizens, and they want nothing more than to fit in. However, you aim to separate them and make them targets of harassment. The sad thing is that you will only make those who fit a racial profile the targets. No one will ever question the blond-haired, blue-eyed ELL student that I have now, so this is just a new form of discrimination.
SB 590 proposal is based on Alabama’s law, which was shown to affect school attendance and the economy of the state. The law has already been challenged in court, and the school provisions to check immigration status have not held up. Therefore, you are proposing a law that will waste Missouri taxpayer money when it goes to court. Why not use that money for education when we are not able to fund the school formula? Is politics worth more to you than the education of Missouri’s students?
Your law proposal states that you want to know how much it costs to educate illegals or children of illegals at the expense of United States citizens. This just proves that you don’t get it. Most of these children are United States citizens because they were born here. It doesn’t matter whether their parents are legal or not. Those that are not citizens or may be illegal deserve the right to an education without harassment. As a teacher, I give my best effort to educate all of my students and treat them all the same. No matter what you decide, I refuse to enforce your racist law at the expense of terrified kindergartners.
Missouri ELL Teacher
From: “Will Kraus” <Will.Kraus@senate.mo.gov>
Subject: SB 590
Date: Mon, Jan 23, 2012 8:55 pm
You must be referring to a different bill. No part of SB 590 asks school staff to “interrogate” children and their families. Currently parents are asked for proof of residency in the district. We are only asking for proof of citizenship of every child and then asking the school to document the number of non-citizen children that attend that school. No teacher, ELL or otherwise, will be at all involved in that process.
My door is always open,
Response from Missouri ESL Teacher
Sent: Monday, January 23, 2012 9:14 PM
To: Will Kraus
Subject: Re: SB 590
Once again, you show how little you understand about how public schools and ELL programs operate. Since many parents of ELL students do not speak English well, we often have to assist in enrollment. This means that we would be forced to ask questions about their immigration status. If you believe that this would not set an antagonistic relationship with these parents and kids, then you need to do further research and talk to ELL teachers.
Mr. Kraus’ Response (Now snippy)From: Will Kraus Sent: Jan 24, 2012 10:00 AM TO: XXXXXXXXXX Subject: RE: SB590
You are right. I do not understand why it is a burden to be asked your immigration status. It is a simple fact, nothing more. You are either a citizen or not. If not, you are either documented or not. If you are documented showing that documentation is not a burden. If you are not, it is a simple answer to a simple question. Since we all agree federal law requires any child an education and since this bill prohibits any use of the information gathered other than to collect numerical data for DESE, I don’t understand why anyone would be afraid of that process.
The area undisputed is that lack of federal enforcement of current law costs Missouri taxpayers money. I don’t believe attempts to quantify that amount are at all misguided.
My door is always open,
KC lawyer: U.S. immigration policy helped murder my client
But in light of the recent announcement from U.S. Citizens and Immigration Services that they are proposing a rule change that would allow certain immediate relatives to apply for and process their waiver applications in the United States and the predictable media storm of alarmists decrying “amnesty” I feel compelled to explain why this regulation change is an excellent step in the right direction and how it would have saved the life of my client, Jacobo Estrada Bautista.
I have been putting off writing this since right after Thanksgiving, frankly because it is so awful that it is hard to think about.
I am sure every lawyer has some of those cases that for whatever reason stick to you and haunt you like the Ghost of Christmas Past, rattling around the office like an omnipresent reminder that we are not, in fact magicians, and, despite our best efforts, there are some things we cannot fix.
The Monday afternoon after a great Thanksgiving, I was in my office answering the slew of emails that had arrived while I was enjoying the unseasonably warm November weather at the Lake of the Ozarks with my family. The phone rang, and I saw from the caller ID that it was Tiffany, the U.S. citizen wife of a Mexican national I have been representing for the last four years in first Jacobo’s removal proceedings and second in their consular processing case for Lawful Permanent Residency through his U.S. citizen spouse of five years.
I wasn’t particularly surprised to hear from Tiffany. She and I had been speaking in the past several weeks about some of the problems we had been encountering in their case and what she and Jacobo wanted to do to try to solve those problems to move forward or if they wanted to give up on their dream of a unified family after four years of struggle, separation and seemingly insurmountable hardship.
As soon as I answered the phone, Tiffany’s voice cracked saying my name and I knew something was wrong.
What I expected to hear was that the intense stress of their situation had finally gotten to be too big of a burden and they had decided to call it quits as a couple. The strain of deportation and the process of consular processing are tremendous and, frankly, more than many families can withstand.
I always tell couples who come to me how difficult it will be, and I always recommend that this process be accompanied by on-going marital and family therapy to deal with the stress and different experiences of the process. Hardly anyone actually does it, but everyone later tells me they wish they had.
In any case, Tiffany and Jacobo were having the same problems endemic to my clients in this situation. It was exacerbated by the fact that their case had been stalled for over a year, Jacobo was entering year two of being in Mexico, because soon after Jacobo left the United States, Tiffany’s father, who was going to act as Jacobo’s co-sponsor since Tiffany did not make enough money alone to be the only sponsor, lost his job and was unemployed for an extended period of time, making his income insufficient to sign an affidavit of support.
Try as they might they could not find someone else willing to act as the co-sponsor, so they had been stalled at that point for going on two years. To add to the stress of being away from his wife and three U.S. citizen kids, Jacobo could not find work in Mexico to be able to help send much money to the U.S. to try to help his family.
Tiffany then lost her job of several years because she could not afford childcare without Jacobo and was having to take too many days off work. They lost the house they had been renting to own, and Tiffany moved out of the Kansas City area, where she and Jacobo had lived for years, back to Oklahoma with her family hoping they could help during this hard time. She also had to quit school.
So working several minimum wage jobs, raising three kids on her own, forgoing her own dreams of finishing college to be an accountant, she pushed on hoping that her dad would get back on his feet to be the co-sponsor or that she would eke out enough money to qualify on her own. But the distance was getting to them. In early November she called me to discuss realistically their options. She talked about how hard it was to be apart, how the youngest kids didn’t remember Jacobo, how they would often fight because of the distance and stress, and that Jacobo’s guilt was overwhelming. But, no matter what, he called every single night to talk to the kids before they went to bed.
We discussed the options and exactly what needed to be done to move forward. The affidavit of support was the main obstacle, but looming in the not too distant future was the waiver Jacobo would need for having lived in the United States without authorization for over one year.
Every single person who enters the United States and remains for one year or more without authorization and then departs is automatically barred from reentering for a period of 10 years. If that person has not incurred unlawful presence of over one year on more than one occasion (entered stayed for a year left and re-entered and stayed again for another year and leaves again) and that person has a “qualifying relative” (LPR or USC spouse or parent), he may be able to apply for a waiver under 212(a)(9)(B)(v) to waive that bar and return to the U.S. as a LPR.
They can obtain this waiver by proving to the satisfaction of the government that the citizen or LPR spouse or parent will suffer extreme hardship if the applicant is not given the waiver and the qualifying relative has to either stay in the U.S. without him or move to the country with the applicant. It is a monumental task and one that usually produces 30 or more hours of work and hundreds of pages of supporting evidence.
So I explained the hurdles we still had to jump. A week or so later she called to say they had decided that they were going to continue and were committed to trying to finish the process. She also had a lead on a possible alternate sponsor. She said she would call me soon with news or if the sponsor had questions about his responsibilities if he decided to do it.
So, when the phone rang, I was expecting news on the new sponsor. When her voice broke asking for me I expected to hear they were divorcing. What I got was quite different and much worse.
She said in a voice that was shaking, “I wanted to tell you right away when I found out but I didn’t want to ruin your Thanksgiving. Jacobo’s dead.” What? Wait … what? I asked her to repeat.
“He’s dead. They killed him.”
I asked her what she meant. She started crying. My stomach dropped and I felt cold. She took a breath.
“He didn’t call me for several days. He always calls. Finally his family told me that Jacobo was out in the town where they live with another family. Some men kidnapped all of them at gunpoint but later let the women go with a ransom demand of 200,000 pesos for the father of the family, and $10,000 American dollars for Jacobo.
“It was the Cartels. It is a small town, and they are everywhere, and everyone knew Jacobo had been in the U.S. for a while and had family here and everyone thought that meant he had money or access to money from his rich American family.
“They found his body and the body of the other man on Sunday a bit out of town, beaten, no shirts, no shoes, hands bound behind their backs, shot in the head. … He’s dead. I thought you should know.”
I couldn’t even make a sound, tears were choking my throat. She was crying, and I could hear the kids in the background.
“Are you sure, are you sure it was him?” I managed.
“Yes. Look on the Internet.” I Googled his name and, because Mexican media has no problem showing dead bodies on the front page, I was quickly able to find several articles with graphic pictures that clearly show his face.
I had nothing for her except to tell her I am so sorry and to cry with her for a bit.
We are more than our taxes, and our numbers and what we consume and contribute. Jacobo was a brother, and an uncle, a husband, a father, a son, a friend and a client.
Did he enter the country without a visa? Yes. Did he do it because he thought he could get a bunch of free public services, go on welfare, or get in-state tuition at the University of Kansas? Don’t be ridiculous.
Does that make him a criminal or a bad person? No, it does not; not legally and not morally. In fact he was put in removal proceedings after being the victim of a car accident. Someone else ran a light, and he went to jail. Is the blind act of making him go through all of this outside the country because that is what the rules say and there is no ability to apply any discretion or judgment worth the devastation it caused three families in two countries? I believe no.
This is why the regulation change that was proposed by USCIS is desperately needed, a great step in the right direction, but really does not go far enough.
You can find the actual Code of Federal Register Notice at https://s3.amazonaws.com/public-inspection.federalregister.gov/2012-00140.pdf
It is not “backdoor amnesty,” a term that quite frankly makes me want to scream for all its ignorance and purposeful hate-mongering. This rule gives people no new rights nor does it change any requirements for people obtaining legal status. It only changes the procedure by which immediate relatives (spouses, parents or unmarried under 21 children of U.S. citizens) go about applying for a waiver.
Here is a summary of who would potentially qualify to have their waiver adjudicated here in the U.S. prior to leaving for the consulate:
1. You must only be inadmissible because of unlawful presence of 180 or more days in the United States. If you have any other inadmissibility issue (fraud, misrepresentation, criminal, health), you are not eligible to apply here and must continue to do the whole process in your country of birth.
2. You must be an immediate relative. That is a spouse, the minor (under 21) unmarried son or daughter or the parent of a U.S. citizen. Realistically, the spouse of a U.S. citizen is going to be the category that is most helped by this change.
For waiver purposes a “qualifying relative” is only a U.S. citizen or permanent resident parent or spouse. A child is not a qualifying relative for purposes of the unlawful presence waiver. So a U.S. citizen child who is over 21 may apply for his or her parents. However, if the parents do not have either a U.S. citizen or LPR spouse or parent, they will not be eligible for a waiver.
What has not changed:
1. You must still qualify for the waiver, i.e. have the “qualifying relative,” prove exceptional and extremely unusual hardship to that qualifying relative, and show that your situation warrants a favorable exercise of discretion by the service.
2. You still have to leave the country and have an interview in the country of birth and get the visa issued there and return, making a lawful entry as a permanent resident.
3. Absolutely everything else about the process, applications, income requirements, filing fees, medical exams etc. is the same.
4. If you are not someone who is an immediate relative, you still must leave the country, so spouses and unmarried children of permanent residents, adult children of U.S. citizens, married children of U.S. citizens and their spouses and minor children and brothers and sisters and their spouses and minor children of U.S. citizens and all resident applications made on behalf of an employee by an employer may not take advantage of the new process.
Why this is good:
The time that someone is out of the country waiting on one of these waivers is the reason that most people who could apply do not. It is simply an unknown quantity that is potentially too big to risk. Best case it is six months and worst case is 10 years. When you are talking about a mother, father or child being away from his/her family that period of time is simply too long for many families to consider taking the risk. This change in procedure would encourage more people to try to legalize their status by taking some of the guesswork out of many cases. The immigrant could remain in the United States with his or her family while the waiver is being decided and only return to their countries for a brief trip. An absence of several weeks or even a month is manageable for most families. Similarly, there is a significant chance that people who are denied could be put in removal proceedings so they will have to continue with this process outside the country.
Second, adjudicating these waivers is very labor and time intensive. There are many documents that are presented and often there is one lone consular officer looking at all the waivers. The new process would mean that there are fewer resources spent shipping documents between the consult and USCIS and more workers to review the applications quickly here than there are in the consults abroad. It would expedite and streamline this process immensely saving time and money in the Department of Homeland Security and the Department of State.
Finally it promotes family unity. The family gets to stay together during the majority of the process and can leave the county knowing that they get to come back after a reasonable amount of time, rather than after months or years or not at all.
Here is the bottom line: This change in procedure would promote more people becoming legal, would waste less government money and resources in processing the applications and promotes and values family unity.
This rule would literally have saved Jacobo’s life. He would be living with his kids and wife, probably still in Kansas City getting ready to apply for citizenship. They probably wouldn’t have lost their house, and Tiffany would probably have been done with college.
That could all be speculation, but he for sure would not have had to spend two years away from his kids and wife and he certainly would not have been kidnapped by drug cartels, and shot in the head and left in a ditch.
If preserving a family is not something you can get behind because one of the members is “illegal,” maybe you can at least get behind not being murdered.
While in my opinion this new policy doesn’t go far enough, it’s a start. And we have to start somewhere.
Angela L. Williams is a solo attorney specializing in immigration law in Kansas City.
Interesting, More commentary later on this, but it is an explanation of why USCIS is proposing the change in processing Waivers in select cases.
This is one of the many reasons that DOMA needs to go. This poor guy and his family do not even have the paltry defense available that a heterosexual couple would in a removal proceeding nor the option to go through either consular processing or adjustment of status because their relationship is not federally recognized.
I have pasted the wording of the proposed procedure change that is causing such a ruckus. It is no “backdoor amnesty” a term that quite frankly makes me want to scream for all its ignorance and purposeful hate mongering. This rule gives people no new rights nor does it change any requirements for people obtaining legal status. It only changes the procedure by which immediate relatives (spouses, parents or unmarried under 21 children of US Citizens) go about applying for a waiver. Even these 3 categories do not all qualify for this new processing. Here is a summary on who qualifies to have their waiver adjudicated here in the US prior to leaving for the consulate:
1. You must only be inadmissible because of unlawful presence of 180 or more in the United States. If you have any other inadmissibility issue (fraud, misrepresentation, criminal, health) you are not eligible to apply here and must continue to do the whole process in your country of birth.
2. You must be an immediate relative. That is a spouse of a US Citizen, the minor (under 21) unmarried son or daughter of a US citizen or the parent of a US Citizen. Realistically the spouse of a US Citizen is going to be the category that is most helped by this change. Here is why: children who are under 18 do not incur unlawful presence for the purposes of this waiver. So a child entered without inspection at age 3 and when he is 15 his mom becomes a US Citizen and makes an application for him. That child will have to go to his country of birth for the interview but will not need a waiver because he is under 18 and has not incurred “unlawful presence” yet. Now a child of a US Citizen who is between 18 1/2 and under 21 will be helped by this provision because he will have “unlawful presence” of either between 6 months but less than 1 year (3 year bar) or over 1 year (10 year bar) depending on when he goes to the interview. A Parent of a US Citizen will also qualify as an immediate relative. However they still have to qualify for the waiver. In order to get the waiver you have to show extreme hardship to a “qualifying relative.” For waiver purposes a “qualifying relative” is ONLY a US Citizen or permanent resident PARENT or SPOUSE. Children are not a qualifying relative for purposes of the unlawful presence waiver. So a US citizen child who is over 21 may apply for his or her parents. However if the parents do not have either a US Citizen or LPR spouse or Parent they will not be eligible for a waiver. So the “anchor baby” scenario, once again debunked, Person who enters without inspection to the US and has a child here. That child is a US Citizen. That undocumented person manages to escape detection from immigration until the USC child turns 21, that undocumented will still not be able to become legal through a petition by his or her 21 year old “anchor baby” because there is not a qualifying relative necessary for that person to get a waiver for the over 1 year of unlawful presence that he or she has incurred. So the only Parents of US Citizen children that will be helped by this law are the ones who also have a US Citizen or LPR parent or spouse in addition to the US Citizen child who is making the application.
What has not changed
1. You must still qualify for the waiver, i.e. have the “qualifying relative” (see above), prove exceptional and extremely unusual hardship to that qualifying relative, and show that your situation warrants a favorable exercise of discretion by the service.
2. You still have to leave the country and have an interview in the country of birth and get the visa issued there and return, making a lawful entry as a permanent resident.
3. Absolutely everything else about the process, applications, income requirements, filing fees, medical exams etc is the same.
4. If you are not someone who is an immediate relative you must still leave the country, so Spouses and unmarried children of Permanent Residents, Adult children of US Citizens, Married Children of US Citizens and their spouses and minor children and brothers and sisters and their spouses and minor children of US citizens and all resident applications made on behalf of an employee by an employer may not take advantage of the new process.
Why this is good
The Vast majority of waivers processed abroad are for unlawful presence. The time that someone is out of the country waiting on one of these waivers to be adjudicated is usually between 4 and 18 months if the waiver is approved. if the waiver is not approved the wait can be much longer, several years to the full term of the bar (3 or 10 years). When you are talking about a mother, father or child being away from his/her family that period of time is simply too long for many families to consider taking the risk. it is actually a deterrent in “getting in line” and “doing things legally.” Imagine the financial and emotional state of your family if you had to be away from you spouse or child for potentially 10 years but most probably a year or more. This hurdle is simply too high for many families to bear. This change in procedure would encourage more people to try to legalize their status by taking some of the guess work out of many cases. The immigrant could remain in the United States with his or her family while the waiver is being decided and only return to their countries for a brief trip. An absence of several weeks or even a month is manageable for most families. If they are denied in the United States they will know why, they can apply again after fixing whatever problem arose, or they will know that applying here is not an option. Similarly, while the proposed rule change does not say one way or the other, there is a significant chance that people who are denied could be put in removal proceedings so they will have to continue with this process outside the country doing it the long way.
Second, adjudicating these waivers is very labor intensive and time intensive. There are many many documents that are presented (normally my waiver packets are between 200-400 pages of evidence) and often there is one lone consular officer looking at all the waivers. It takes months and sometimes years for someone to even LOOK at the application and decide if there is enough evidence to make a decision. This new process would mean that there is less resources spent shipping documents back and forth between the consult and USCIS int he US. There are far more resources int he form of eyes looking at documents than there are in the consults abroad. It would expedite and stream line this process immensely saving time and money in the Department of homeland Security and the Department of State. Money ultimately that can be used for other things.
Finally it promotes family unity. The fact that many republicans are all up in arms over this really astounds me seeing that they are suppose to be the party of less government waste and family values. To be honest, despite the fact that I personally have never claimed to be a republican, I am pretty disgusted at what the party has become. I think Reagan is probably rolling over in his grave at the appalling array of potential candidates for next election, nothing but crazy, hate mongering lunatics that for some reason value never changing one’s opinion during one’s political career to adjust for different times and situations over rationality, and the ability to adjust one’s view to changed circumstances. Here is the bottom line. This change in procedure would promote more people becoming legal, would waste less government money and resources in processing the applications and promotes and values family unity. If you are too closed minded to see that than what you want is not reform you want closed borders and society. You want isolationism and to hurt the United States culturally, economically and internationally. You want families to be split apart and for children to grow up without a parent. You value neither family nor children. And you should stop lying to everyone, including yourself and start calling it what it is: Racism, Ignorance and Fear of other cultures.
Do something crazy. Read something with an open mind from under the veil of ignorance and do the radical thing of changing your mind.
This section of the FEDERAL REGISTER contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules.
Federal Register / Vol. 77, No. 5 / Monday, January 9, 2012 / Proposed Rules
DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 212
Provisional Waivers of Inadmissibility for Certain Immediate Relatives of U.S. Citizens
AGENCY: U.S. Citizenship and Immigration Services, Department of Homeland Security.
ACTION: Notice of intent.
SUMMARY: U.S. Citizenship and Immigration Services (USCIS) intends to change its current process for filing and adjudication of certain applications for waivers of inadmissibility filed in connection with an immediate relative immigrant visa application. Specifically, USCIS is considering regulatory changes that will allow certain immediate relatives of U.S. citizens to request provisional waivers under section 212(a)(9)(B)(v) of the Immigration and Nationality Act of 1952, as amended (INA or Act), 8 U.S.C. 1182(a)(9)(B)(v), prior to departing the United States for consular processing of their immigrant visa applications. An alien would be able to obtain such a waiver only if a Petition for Alien Relative, Form I-130, is filed by a U.S. citizen on his or her behalf and that petition has been approved, thereby classifying the alien as an “immediate relative” for purposes of the immigration laws, and he or she demonstrates that the denial of the waiver would result in extreme hardship to the alien’s U.S. citizen spouse or parent “qualifying relative.” The qualifying relative for purposes of the waiver is not necessarily the immediate relative who filed the immigrant visa petition on the alien relative’s behalf.
FOR FURTHER INFORMATION CONTACT: Roselyn Brown-Frei, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529- 2099, telephone (202) 272-1470 (this is not a toll free number).
The proposed process is intended to reduce the time that U.S. citizens are separated from immediate relatives who are required to remain outside the United States for immigrant visa application processing and during the adjudication of waivers of inadmissibility. Through this change, USCIS does not intend to modify the standard for assessing eligibility for these waivers, including whether the denial of the waiver would result in extreme hardship to a U.S. citizen spouse or parent (“qualifying relative”). For purposes of the waiver under section 212(a)(9)(B)(v) of the Act, a “qualifying relative” is a U.S. citizen spouse or parent or a lawful permanent resident spouse or parent who would suffer extreme hardship if their relative were not allowed to immigrate. For purposes of this provisional waiver program, DHS intends to limit who may participate in this program to immediate relatives who can demonstrate extreme hardship to a U.S. citizen spouse or parent. Even if they obtain a provisional waiver, eligible aliens who are required to obtain a visa through consular processing would still be required to depart from the United States to apply for an immigrant visa. The purpose of the new process is to reduce the time that U.S. families remain separated while their relative proceeds through the immigrant visa process.
Certain grounds of inadmissibility can bar aliens from being admitted to the United States or obtaining an immigrant visa, preventing U.S. citizens from reuniting with their immediate relatives. However, the Secretary of Homeland Security, through USCIS, may waive some of those grounds. An alien who is subject to one or more grounds of inadmissibility must obtain a waiver, if available, from USCIS before he or she may be issued an immigrant visa by a Department of State consular officer at a U.S. embassy or consulate overseas.
The bars to admission under section 212(a)(9)(B)(i)(I) and (II) of the INA, 8 U.S.C. 1182(a)(9)(B)(i)(I) and (II), based on accrual of unlawful presence in the United States, comprise one such ground. Typically, under current processes, aliens who are immediate relatives of U.S. citizens applying for immigrant visas at Department of State consular posts must apply for waivers of unlawful presence while outside the United States after a finding of inadmissibility is made by a Department of State consular officer in conjunction with their immigrant visa applications. As a result, U.S. citizen petitioners are often separated for long periods of time from their immediate relatives who are applying for immigrant visas and have accrued a certain period of unlawful presence in the United States. This revised process, which eliminates the time-consuming interchange between the Department of State and USCIS, would significantly reduce the amount of time that American families will be separated from their immediate relatives. USCIS also believes that efficiencies can be gained through this revised process for both the U.S. Government and most applicants.
USCIS intends to limit consideration for the provisional waiver to aliens who qualify for classification as immediate relatives of U.S. citizens, who have a U.S. citizen spouse or parent who would suffer extreme hardship if the waiver were denied, and for whom the sole basis for inadmissibility is unlawful presence in the United States of more than 180 days. USCIS would grant a provisional waiver if the alien meets the eligibility requirements described in this Notice, including demonstrating that the applicant’s qualifying U.S. citizen spouse or parent would suffer extreme hardship and that the applicant warrants a favorable exercise of discretion. The provisional waiver would be granted before the alien leaves the United States to attend his or her immigrant visa interview with a consular officer. The provisional waiver, however, would not become effective unless and until the alien departs from the United States. If the alien is otherwise eligible for the immigrant visa, the consular officer may then approve the issuance of the visa so that the alien may proceed to immigrate to the United States for permanent residence.
This notice of intent generally describes the proposal that USCIS is considering. USCIS will further develop, and ultimately finalize, this proposal through the rulemaking process. This effort is consistent with
Executive Order 13563’s call for agencies to “consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” Do not send an application requesting a provisional waiver under the procedures under consideration in this notice. Any application requesting this new process will be rejected, and the application package returned to the applicant, including any fees, until a final rule is issued and the change becomes effective.
The Homeland Security Act of 2002, Public Law 107-296, section 102, 116 Stat. 2135, 6 U.S.C. 112, and section 103 of the INA, 8 U.S.C. 1103, charge the Secretary of Homeland Security with administration and enforcement of the immigration and naturalization laws. The Secretary would effectuate these proposed changes under the broad authority to administer the Department of Homeland Security and the authorities provided under the Homeland Security Act of 2002, the immigration and nationality laws, and other delegated authority.
C. Grounds of Inadmissibility
U.S. immigration laws provide mechanisms for U.S. citizens to petition for certain family members for admission to the United States for purposes of family reunification. At the same time, however, the immigration laws prescribe acts, conditions, and conduct that bar aliens, including immediate relatives of U.S. citizens, from being admitted to the United States or obtaining an immigrant visa. Such acts, conditions, and conduct include certain criminal offenses, public health concerns, fraud, misrepresentation, failure to possess proper documents, accrual of more than 180 days of unlawful presence in the United States, and terrorism. The grounds of inadmissibility are set forth in section 212(a) of the INA, 8 U.S.C. 1182(a).
The Secretary of Homeland Security has the discretion to waive certain inadmissibility grounds, upon the filing of a request by an alien who meets the relevant statutory requirements. If the Secretary, through USCIS, grants such a waiver, the waived ground will no longer bar the alien’s admission, readmission, or immigrant visa eligibility based on that specific ground of inadmissibility.
One of the inadmissibility grounds is described in section 212(a)(9)(B)(i) of the Act, 8 U.S.C. 1182(a)(9)(B)(i). Under part (I) of this provision, an alien who was unlawfully present in the United States for more than 180 days but less than one year, and who then departs voluntarily from the United States before the commencement of removal proceedings, will be inadmissible for three years from the date of departure. Under part (II) of the same provision, an alien who was unlawfully present for one year or more and then departs before, during, or after removal proceedings, will be inadmissible for ten years from the date of the departure.
The three- and ten-year unlawful presence bars do not take effect unless and until an alien departs from the United States. By statute, aliens are not considered to be accruing unlawful presence for purposes of section 212(a)(9)(B)(i) if they fall into certain categories. For example, aliens do not accrue unlawful presence while they are under 18 years of age. See INA section 212(a)(9)(B)(iii)(I), 8 U.S.C. 1182(a)(9)(B)(i)(iii)(I). Similarly, individuals with pending asylum claims generally are not considered to be accruing unlawful presence while their applications are pending. See INA section 212(a)(9)(B)(iii)(II), 8 U.S.C. 1182(a)(9)(B)(i)(iii)(II). Battered women and children and victims of a severe form of trafficking in persons are not subject to the section 212(a)(9)(B)(i) ground of inadmissibility at all if they demonstrate that there was a substantial connection between their victimization and their unlawful presence. See INA 212(a)(9)(B)(iii)(IV)-(V), 8 U.S.C. 1182(a)(9)(B)(i)(iii)(IV)-(V). Aliens who are subject to the unlawful presence bars must apply for and be granted a waiver in order to receive an immigrant visa and be admitted to the United States.
The Secretary of Homeland Security has the discretion to waive the three- and ten-year unlawful presence bars if the alien is seeking admission as an immigrant and if the alien demonstrates that the denial of his or her admission to the United States would cause “extreme hardship” to the alien’s qualifying relative. See INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). The qualifying relative for purposes of the waiver is not necessarily the relative who filed the immigrant visa petition on the alien relative’s behalf. For example, an alien applicant’s U.S. citizen spouse may have filed the immigrant visa petition on the applicant’s behalf, but the applicant’s unlawful presence waiver application may be based on extreme hardship to the applicant’s U.S. citizen parent. Because the granting of a waiver is discretionary, the alien also must establish that he or she merits a favorable exercise of discretion.
D. Current Process and Problems
An alien who must apply for permanent residence through consular immigrant visa processing outside the United States must appear for an interview with a Department of State consular officer abroad. Currently, if the consular officer determines that the alien is subject to the three- or ten-year bar, the consular officer advises the alien that he or she is eligible to apply for a section 212(a)(9)(B)(v) waiver by filing a Form I-601, Application for Waiver of Grounds of Inadmissibility, with USCIS. Under current rules, an individual is not permitted to apply for the section 212(a)(9)(B)(v) waiver before the consular officer has made the inadmissibility determination.
Once the Form I-601 is filed, in most cases, the file is transferred from the Department of State to USCIS. USCIS adjudicates that waiver request while the alien remains outside the United States and awaits a decision. If USCIS approves the waiver, USCIS notifies the Department of State, and the Department of State may then issue the immigrant visa if the applicant is otherwise eligible. If the waiver is denied, the alien may appeal the decision to the USCIS Administrative Appeals Office and, if the denial is upheld, the alien must remain outside the United States for three or ten years before being able to reapply for an immigrant visa. However, a denial does not preclude the alien from filing another Form I-601 in the future.
The three- and ten-year unlawful presence bars under section 212(a)(9)(B)(i)(I) and (II) of the Act do not apply unless and until the applicant departs from the United States. At the same time, many aliens who would trigger these bars if they depart from the United States are, for other reasons, statutorily ineligible to apply for adjustment of status to lawful permanent residence while remaining in the United States. Consequently, they must depart to regularize their immigration status by applying for their immigrant visas at a U.S. embassy or consulate abroad. The action required to regularize the status of an alien, departure from the United States, therefore is the very action that triggers the section 212(a)(9)(B)(i) inadmissibility that bars that alien from obtaining the immigrant visa.
II. Proposed Waiver Process
A. Proposed Process
The proposed change would create a more streamlined and efficient process for waiver applicants whose sole inadmissibility ground is unlawful presence, while simultaneously minimizing family separation. If the waiver determination, with respect to unlawful presence, were made in advance of the immigrant visa interview and the applicant otherwise were eligible for the immigrant visa, the consular officer could simply issue the immigrant visa at the time of the visa interview. The new process thus will reduce the movement of the case back and forth between the Department of State and USCIS, which significantly prolongs the overall process and increases the time that U.S. citizens are separated from their immediate family members. Additionally, the new process would reduce U.S. Government costs associated with the movement of cases, and provide a more efficient visa process overall.
B. Affected Visa Categories
USCIS intends to limit this process change to aliens who are immediate relatives of U.S. citizens, as defined in section 201(b)(2)(A)(i) of the Act, 8 U.S.C. 1151(b)(2)(A)(i), who must depart from the United States to obtain immigrant visas, and whose U.S. citizen spouse or parent would suffer extreme hardship if the applicant were denied admission to the United States. The term “immediate relative” means the spouse, parent or child (unmarried and under 21 years old) of a U.S. citizen, except that, in the case of a parent, the U.S. citizen son or daughter petitioning for an immigrant visa must be at least 21 years old. Certain self-petitioners (i.e., widows/widowers of U.S. citizen and their minor unmarried children) may also be considered immediate relatives. See INA 201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i). Individuals applying for a waiver must also establish that the grant of the provisional waiver is warranted as a matter of discretion.
Because the focus on family unification of U.S. citizens and their immediate relatives is consistent with Congress’ prioritization in the immigration laws, USCIS has identified immediate relatives of U.S. citizens as the class of aliens to consider for this procedural change. In addition, Congress did not set an annual limitation for the number of immediate relatives of U.S. citizens admitted to the United States. Therefore, these relatives always have an immigrant visa immediately available, and the visa thus can be processed immediately upon approval.
C. Ground of Inadmissibility Considered for Provisional Waiver
USCIS intends to further limit this procedural change to waivers filed by immediate relatives of U.S. citizens whose only ground of inadmissibility is the three- or ten-year unlawful presence bar under section 212(a)(9)(B)(i)(I) or (II) of the Act, 8 U.S.C. 1182(a)(9)(B)(i)(I) or (II). Aliens who require waivers for one or more additional grounds of inadmissibility, such as fraud or willful misrepresentation (section 212(i) waiver) or certain criminal offenses (section 212(h) waiver), in conjunction with their immigrant visa applications must continue to file a Form I-601 while outside of the United States in accordance with the existing process.
To qualify for the provisional waiver process, an applicant must establish not only that he or she is the immediate relative of a U.S. citizen, but also that denial of the waiver would result in extreme hardship to a qualifying relative. The qualifying relative must be a U.S. citizen spouse or parent but does not need to be the U.S. citizen petitioner. Only extreme hardship from the denial of a waiver to a qualifying U.S. citizen relative makes an alien eligible for the provisional waiver process; extreme hardship to the alien himself or herself as a result of denial does not make the alien eligible. An alien whose waiver application is based on extreme hardship to a lawful permanent resident spouse or parent must continue to apply for the waiver from outside the United States in accordance with existing procedures. Eligible aliens, furthermore, must be the beneficiaries of petitions classifying them as immediate relatives of U.S. citizens, and thus have visas immediately available. Because the granting of a waiver is discretionary, eligible aliens also must establish that they merit a favorable exercise of discretion. The standard for assessing whether denial of the waiver would result in extreme hardship to the U.S. citizen spouse or parent of such aliens will remain unchanged.
D. Adjudication and Decisions
After filing the Form I-601 with USCIS, DHS envisions that an alien seeking a provisional waiver would be required to undergo biometrics collection. USCIS would deny the application for a provisional waiver if other possible grounds of inadmissibility are found or arise during adjudication.
If the application is approved, USCIS would notify the Department of State and the alien of the provisional approval. In all instances, a Department of State consular officer would make the formal inadmissibility finding during or following the immigrant visa interview abroad, and if no other grounds of inadmissibility arise, the provisional waiver under section 212(a)(9)(B)(v) of the Act granted by USCIS would facilitate immigrant visa issuance. If, however, the consular officer finds during adjudication of the immigrant visa application that the individual is subject to another ground of inadmissibility that can be waived, the alien would need to file another waiver application with USCIS.
This process would not alter the requirement that an alien depart from the United States to apply for an immigrant visa. An alien who receives a provisional waiver under section 212(a)(9)(B)(v) of the Act for the three- or ten-year bar under section 212(a)(9)(B)(i)(I) or (II) of the Act would not gain the benefit of such waiver unless he or she departs from the United States. The departure from the United States would have to take place to activate the provisional waiver under section 212(a)(9)(B)(v) of the Act.
E. Excluded Visa Categories
Aliens who would not be eligible for this provisional waiver adjudication process and aliens who are denied provisional approval of their waiver requests would continue to follow current agency processes for filing and adjudication of waiver requests. Aliens who fall under any other family- or employment-based or other visa category or whose section 212(a)(9)(B)(v) waiver eligibility would be based on extreme hardship to a lawful permanent resident alien relative would not be considered for provisional waivers. Aliens who are subject to other grounds of inadmissibility or removal also would not be considered for provisional waivers. Further, aliens with waiver applications under section 212(a)(9)(B)(v) of the Act currently pending in either administrative or judicial proceedings would not qualify for this new process.
This document outlines the key elements of USCIS’s proposed change to its current process for filing and adjudication of waivers of inadmissibility for unlawful presence for immediate relative of U.S. citizens. The focus on family unification of U.S. citizens and their immediate relatives is consistent with Congress’s prioritization
in the immigration laws; the new process will reduce the movement of the case back and forth between the Department of State and USCIS, which significantly prolongs the overall process and increases the time that U.S. citizens are separated from their immediate family members. The proposed change would affect only when and where certain aliens can apply for waivers of the unlawful presence grounds of inadmissibility; it would not change the extreme hardship standard for evaluating eligibility for the waiver nor would it change whether aliens subject to these grounds of inadmissibility must depart the U.S. to apply for their immigrant visas. USCIS plans to effectuate this proposal through the regulatory process. USCIS will issue a proposed rulemaking that will explain the proposal in further detail and that will invite comment from all interested parties. Note: Do not send an application requesting a provisional waiver under the procedures under consideration in this notice. Any application requesting this new process will be rejected and the application package returned to the applicant, including any fees, until a final rule is issued and the change becomes effective.
Secretary of Homeland Security.
[FR Doc. 2012-140 Filed 1-6-12; 8:45 am]
BILLING CODE 9111-97-P
This is the hot news of the day. I have not had a chance to read the proposed regs yet so be sure there will be more to come, but I wanted to put this out there so everyone could read it. it is far from over, the regs still have to pass, which may or may not happen, but it would help out many of my clients if this would happen.