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Friday, February 10, 2012

New Immigration Rules Proposed

Things just got a little easier -- maybe! Proposed rule changes by Alejandro Mayorkas, the Director of US Customs and Immigration Services, would make it easier for an illegal immigrant married to a US citizen spouse to leave the country and return legally to the US. This is a major change he is proposing, and worth understanding a little better. As it stands today, a major source of frustration for illegals and attorneys alike is the 3/10 rule. Essentially, if you are in the country illegally for over 180 days, but under one year, you have to be out of the country for three years before you may apply to re-enter legally. If you have been in the country over one year, you have to wait 10 years before you are eligible to re-enter the US.

As you might imagine, this presents a serious problem to married couples (and families). There are numerous ways to attempt to overcome this base regulation. However, one of the more common, and legally accepted methods, involves the US Citizen spouse claiming extreme hardship if her illegal husband/wife had to actually wait the 3/10 years. Important notice here: it is not the hardship of the illegal alien that is considered by the USCIS. Rather it is the difficulties inflicted on the US Citizen spouse that are controlling.

The problem is that both the State Department (consulates and embassies -- as well as security officers) and the USCIS (immigrations and visas) must approve the waiver and the entrance, and conduct background verification. The coordination between these two branches of government is...mildly stated...perplexing and prone to time delay, lost files, incorrect information, and bureaucratic bungling. Long delays are common, even if the waiver is approved.

Heretofore, filing a waiver was only possible from outside of the US (i.e. from a consular office). However, with the new proposed regulations, the review window for a provisional hardship waiver is is lessened, and the form and paperwork may be filed from within the United States.

Mayorkas summarized it by explaining:
"The proposal as contemplated now is that the spouse or son or daughter of the United States citizen could apply for a waiver before departing the United States if the only ground of inadmissibility is unlawful presence. USCIS will adjudicate that waiver, and if that waiver is granted, if we determine that the ground of inadmissibility is unlawful presence and the separation between that individual and a United States citizen would serve an extreme hardship on the United States citizen relative, we would grant a provisional waiver. The individual, the relative, would then depart the United States for their visa interview. The Department of State would confirm that the only ground of inadmissibility is unlawful presence, and if indeed that was confirmed and there was no other deterrence to admission, such as the commission of fraud, then the provisional waiver would be finalized and the individual would be admitted to the United States. And so the period of separation is significantly reduced because the time that it takes USCIS to adjudicate the waiver would be accomplished before the individual has departed the United States."

In terms of a processing timeline, the Director indicated that while the actual time for investigation and issuance of a provisional Hardship Visa is not changed (approximately 6-12 months), once the provisional Visa is issued, and the illegal leaves the country to re-enter legally, that procession should take a much abbreviated time:
"...[S]o we are going to be working very closely with the Department of State to ensure that that time of separation, the time when an individual has already departed the United States with a provisional waiver, the time it takes for that provisional waiver to become final, the visa to be issued, and the person to be admitted, our goal is to reduce that time. And it will not be months. It will be days or weeks. That is our goal."

A few interesting points. This would be the first visa that can be issued to an illegal alien while they are in unlawfully present status. Secondly, this would effectively stop proceedings against the illegal immigrant while the hardship visa was being investigated -- or would it? This is an excellent new tool in the litigators box. The Director seemed to indicate that allowing the illegal immigrant to remain in the country while the review process was undertaken by USCIS was intentional and designed to reduce the hardship of the US Citizen spouse.
"That time period is six months on average, but sometimes more. We’re always, of course, interested in improving our processing times, but those are our processing times currently. And we don’t anticipate an acceleration of that processing time. However, under this new process we will be adjudicating that waiver before the individual has to depart the United States. And what - the time that really will be reduced is the time of separation between the family member whose waiver has been granted and the United States citizen who would suffer extreme hardship by virtue of that separation. So that’s the critical time period that current law, as it exists now, is designed to avoid. "

If you are in the US illegally, and have a US Citizen spouse (note --> LPR status is NOT eligible to apply for this. Must be a US Citizen spouse), contact us immediately to discuss how this proposed rule can effect your actions. The Director anticipated the regulations changing before the end of this year. Get working on this now so you are ready.

Sean R. Hanover, Esq

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