Important news about the proposed provisional waiver. It was introduced by USCIS on March 30, 2012 for comments, see the article above for instructions on how to comment.
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.