In this fractious summer of immigration reform debate, it is good to remember that for many U.S. citizens, immigration is a personal issue. “Mixed” families, containing U.S. citizens and lawful residents as well as undocumented immigrants, have been forcibly separated by ramped-up enforcement, with devastating consequences. Current immigration law mandates harsh penalties for “unlawful presence” in the U.S., even for someone with a U.S. citizen “immediate relative”. Upon departure from the U.S., six months of prior unlawful presence causes a bar of three years before an individual may reunite here with U.S. family, while a year of prior unlawful presence in the U.S. triggers a ten-year bar to returning to this country.
The pressure on the administration to “do something” to help suffering families of immigrants increased well before the 2012 elections. In response, the Obama administration has made administrative changes. The most famous change provides a two-year deferral of removal for certain immigrants brought here as children. Another new program is known as the provisional waiver. This significantly changes the procedure to seek a waiver, or forgiveness, for the bars to lawful return for some immigrants who previously accrued unlawful presence. The program minimizes separation of “mixed” families of U.S. citizens (USCs) and their “immediate relatives” (IRs – that is spouses and unmarried children under 21 of USCs, and parents of USCs age 21 and over) who face a three or ten-year bar to admission if they apply for immigrant visas abroad.
How does this work? USCs may petition the U.S. Citizenship and Immigration Services (USCIS) for immigrant visas for their IRs. If the IR, however, was not “admitted” or “paroled” into the U.S. after inspection, upon petition approval the IR must apply for an immigrant visa abroad. Leaving the U.S., however, triggers bars for unlawful presence, unless a waiver is granted. A discretionary unlawful presence waiver normally requires proof of “extreme” hardship to a U.S. citizen or lawful permanent resident spouse or parent, a complex fact-specific determination that can take months or longer to decide.
IRs traditionally could not apply for unlawful presence waivers until being found inadmissible at their visa interviews abroad. This meant that the qualifying U.S. relative would be forced to suffer the very “extreme hardship” the waiver was designed to eliminate, for several months or longer. Of course, if the waiver ultimately were denied, the inadmissibility would continue. Because of this, many affected families decided not to risk applying until this past March, when the administration began the “provisional waiver” program. This has permitted certain IRs to apply for a “provisional” unlawful presence waiver in advance of leaving the country.
Eligibility for the provisional waiver program is limited to IRs aged at least 17, physically present in the US. The IR immigrant visa petition must be approved and transferred for “consular processing” to the Department of State (DOS) with application fees paid. Inadmissibility must solely be based on accrual of unlawful presence, and the waiver application must establish the requisite “extreme hardship” to a qualifying USC (not permanent resident) spouse or parent if the waiver is denied. If deportation or removal proceedings were instituted against the applicant, they must be “administratively closed.”
To apply for the provisional waiver, the IR must complete the appropriate form (I-601A) and submit it and all appropriate supporting evidence to USCIS. The waiver application package must include evidence of eligibility as outlined above, and extensive proof of the extreme hardship that would occur should the waiver be denied. If the provisional waiver is approved, the IR will leave the U.S. to attend the visa interview, significantly shortening the time spent abroad for most applicants and providing some security that they will soon return to their families. If the U.S. consulate does not find any additional inadmissibility ground, and the applicant is eligible, he or she will be issued the visa. However, if additional inadmissibility is discovered at the interview, if a waiver is available, a new application must be filed with the attendant delay and uncertainty.
The provisional waiver program is a procedural change that applies only to a subset of people seeking to immigrate to the U.S. It does not create any new legal right. Still, the program potentially will legalize thousands who refrained from becoming legal for fear of being barred from returning to their families. While it is no substitute for comprehensive immigration reform, the provisional waiver program demonstrates a “common sense” approach to immigration processing that will permit many U.S. citizens to make their lives with their immigrant relatives, while continuing strict scrutiny of potential immigrants. Like the administration’s deferral of removal for immigrant youth, and its encouragement of “prosecutorial discretion” in immigration enforcement, it is a humane approach to a difficult problem that has far-reaching effects for undocumented immigrants who have formed families in the U.S.
Alison J. Brown practices immigration and nationality law at the Law Offices of Alison J. Brown. Supraja Murali is a George Washington University Law Fellow.