The “Stay-at-Home Waiver” Works!
As February 2018 nears its close, I want to reflect upon a really good week in my waiver practice. Three married couple clients of mine are now free from the fear of prolonged family separation due to a humane procedure instituted by the Obama Administration known as the “Provisional Unlawful Presence Waiver,” or as I call it the “Stay-At-Home Waiver.”
This waiver is applied for utilizing form I-601A available at the US Citizenship and Immigration Services website, www.uscis.gov.
The waiver works like this. If a US citizen or green card holder marries a foreign citizen who entered the United States illegally, and who has been “unlawfully present” in the United States for a year, there are two hurdles to the foreign citizen spouse acquiring legal status here.
First, it is not possible for a foreign citizen who is not “lawfully admitted or paroled” into the United States to acquire legal status through marriage to an American or green card holder while remaining in the United States. That is simply the way the law is written. Instead, the American or green card holder can petition for the foreign spouse, and the petition can be granted as a first step in the legalization process. However, for those who entered illegally, it is necessary to return to home country and apply for an immigrant visa at the US Embassy’s consular section for that country.
Second, anyone doing this faces the risk of being barred from returning to the United States for 10 years if they have been unlawfully present in the United States for a year and thereafter “depart” the USA to apply for the immigrant visa. It is a perfect “Catch-22.”
There is a waiver of the unlawful presence 10-year-bar available if the visa applicant can establish that his or her US citizen spouse would suffer “extreme hardship” if the visa applicant were not granted permission to return.
However, under the law prior to the establishment of the I-601A procedure, it was necessary for the visa applicant to risk 10 years’ separation to see whether there is enough evidence of “extreme hardship” for the waiver to be granted. This imposed huge hardships in and of itself because applying for the waiver would frequently take a year or more of family separation, with the US citizen or green card holder spouse here in the US and the foreign citizen visa applicant trapped in the home country waiting for an adjudication of the waiver application.
The great humanitarian reform of the I-601A procedure is that these applicants who have approved alien relative petitions filed by their spouses can now apply for a “provisional” waiver of the unlawful presence bar while remaining in the United States. If a provisional waiver is granted,, the applicant can then travel to the home country to finalize the waiver process at the same time he or she applies for the visa. In the great majority of cases a provisional waiver ripens into a full waiver, unless the visa applicant has some other grounds of inadmissibility such as a criminal record, etc.
This past week in my practice three foreign citizens have acquired the vital immigrant visa at the home country’s US Consulate after securing a provisional unlawful presence waiver.
The first was a citizen of Honduras whose US citizen wife needed his help running the family and making ends meet economically. He had undiagnosed health problems of his own which increased the hardship to his wife from the uncertainty of what would happen to him should he be stranded in Honduras without proper medical care.
The second case involved a male citizen of Mexico whose wife suffered an earlier trauma from having been “stalked” by a male stepfather when she was a teenager. This made her very fearful of men and in great need of the emotional security and well-being that comes with having “a good man” as a husband. In addition, the US citizen wife was heavily dependent upon her husband’s income to fund her continuing education at college.
The third case involved a male citizen of Guatemala whose US citizen wife worked only part-time in the local Catholic church as a cleaner, because she needed to spend the vast majority of her time taking care of couple’s three children, all of whom were tragically burdened with one form or another of learning disability. Without her husband’s financial and emotional support in raising their family, she simply could not have “made it” on her own.
Each of these cases required a substantial workup of the family’s personal lives, physical and mental health issues, and financial questions. Each was supported by the assessment of a clinical psychologist to assist the immigration factfinders in seeing that denial of a waiver would result in “extreme hardship” to the US citizen spouse.
Bringing families together is one of the great rewards of immigration practice. To have three immigrant visas granted in one week is particularly special. Definitely something to celebrate.
Brian D. O'Neill Attorney at Law, LLC
Immigration, Employment and Business Law