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On Friday, January 6, 2012, the Citizenship & Immigration Service announced that it intended to make a minor procedural change to the way certain waivers of inadmissibility are decided.  Although this change is best described as minor and procedural, it has enormous implications for hundreds of thousands of immigrants, their families, employers and communities.  In announcing its intention to reform the process of deciding unlawful presence waivers, the administration has taken a large step towards a saner and more humane immigration policy. As a result of this change, many American families will avoid the pain and hardship of prolonged separation while waiting for an overseas office to consider their waiver applications.

What changed?

CIS announced that it would decide waivers of inadmissibility in the United States before an immigrant proceeds abroad to seek an immigrant visa.   Certain immigrants who must travel abroad to obtain visas will now be able to obtain waivers of unlawful presence in the U.S. before they travel abroad.

How did it work before this change?

Before this change, many immigrants seeking resident status had to travel abroad to obtain a visa.  However, if they had accrued more than 180 days of unlawful presence prior to leaving the U.S., their departure to obtain the visa triggered the so-called “3 and 10 year bars,” which prohibited their return for either three or ten years, depending upon how long they had been unlawfully present in the U.S.  A waiver of this bar is available.  The waiver could be sought only after a consular officer determined that the applicant was inadmissible due to unlawful presence.  At that point, the immigrant could apply for the waiver.  Adjudication of waiver applications often took over a year, during which time the applicant would have to wait in his home country, separated from loved ones in the U.S.  If the waiver was granted, the visa could be issued and the immigrant would return to the U.S.  If the waiver was not granted, the immigrant would have to “serve” the rest of the three or ten year bar before becoming eligible to return.

What was wrong with this system?

Many individuals who would travel abroad to seek an immigrant visa were married to Americans but were ineligible to get their green cards in the U.S.  They often have children and are significant contributors to the household income.  However, due to their unlawful presence, by traveling abroad, they would be barred from returning unless a waiver was granted.  Even if a waiver were granted, the process would take about a year, during which time they would be separated from their families and out of work.  Of course, if the waiver were not granted, they would be stuck outside the U.S. for up to a decade.   Many immigrants made the reasonable decision not to take such a  risk.  They chose to remain in the U.S. without legal status rather than risk prolonged separation by departing to seek a chance to obtain a visa.  As a result, the three and ten year bars and the Russian roulette odds regarding waivers actually served to ensure continued unlawful status.  By making it difficult to fix one’s immigration status, the law, policy and procedures encouraged and prolonged illegal status.

How does the change fix this?

The proposed rule will allow individuals who are eligible for an immigrant visa but would be inadmissible due to travel abroad to seek a waiver before departing the U.S.  Thus, if the waiver is approved, the immigrant could travel to his home country to seek the visa, knowing that he would be able to return.  It remains to be seen how the government will react to unsuccessful applicants for waivers and whether it will seek to initiate removal proceedings against them.  However, for those individuals who are able to obtain waivers, the new process will give them certainty that their departure abroad will result in an immigrant visa and not a prolonged separation from loved ones and work.

How does someone get a waiver and does the new procedure change this?

The new procedure does not alter the legal requirements for a waiver.  A waiver is only granted where the immigrant can demonstrate that denial of residence would result in extreme hardship to a U.S. citizen or permanent resident spouse or parent.  Thus, even under the new procedure, an applicant must demonstrate extreme hardship to a close family member if the visa were denied.  Extreme hardship remains a highly subjective standard taking into account health, financial, emotional, and social factors.  In addition, an immigrant must show that he merits a favorable exercise of discretion.

Who does this apply to?

The new procedure only applies to waivers required due to unlawful presence.  Individuals who need waivers due to fraud or criminal convictions can not obtain pre-adjudication of the waivers prior to departing abroad.  In addition, it only applies to people seeking visas as immediate relatives, which means the spouse, parents or children of U.S. citizens.

Sounds great! How do I sign up?

Hold your horses!  This is not the law yet.  CIS has simply stated that it intends to change this procedure.  To actually change the procedure, CIS must publish a new regulation, receive and review comments and publish a final rule.  CIS anticipates that this procedure will not be implemented until the end of 2012.  Thus, at this time, nothing has changed in the process.

Drat!  Is there any chance that this does not happen?

Yes.  Immigration politics and policy are extremely volatile.  Given the timeline for this change to be implemented, the results of the 2012 election could impact whether this change actually takes place.  It is hard to imagine any of the candidates for the Republican nomination for President supporting this change.  Therefore, President Obama’s failure to get re-elected will almost certainly derail this progress.

Why is the government doing this?

Simply put, it is smart policy.  By allowing individuals who otherwise qualify for immigrant visas, are members of American families and have no other legal problems other than unlawful presence to obtain legal status, the administration brings a new group of people into our community, supports family unity, and deals a blow to the underground economy where so many immigrants toil without adequate safety protections, wages, and rights.

In addition to being good policy, it is good politics.  In an election year, the President has apparently decided that he wants to cast his lot with American families trying to stay together rather than with the arch-restrictionist caucus in Congress.  After several years of attempting to placate the know-nothing restrictionists, the President appears to have decided that he will take those steps to help immigrants that he is legally empowered to do.  It is a refreshing step.