I have previously written here about the benefits of the Obama-era "stay-at-home" unlawful presence waiver (an “I-601A application”) for undocumented foreign citizens in the USA who initially enter the United States unlawfully. Very briefly, it allows a foreign citizen who has accrued so-called “unlawful presence” here in excess of one year, to apply in the United States for a provisional extreme hardship waiver for an immediate relative – typically a US citizen or permanent resident spouse – before the foreign citizen “departs” the US to apply for a visa in the home country.
This is important because a person who “departs” the United States after being “unawfullly present” for more than a year is barred from returning for 10 years unless he or she can show “extreme hardship” to the quaifying immediate relative. And, under law before the “stay-at-home” waiver procedure was put into effect, the only way one could apply for an extreme hardship waiver was by actually traveling to the home country, applying for the visa, and then applying for the waiver (using a different “I-601 application”). Thus, the very act of requesting a visa to return put one at risk of not being able to do so for a decade, if the waiver was denied! And the processing time for such I-601 waivers now ensures family separations for 12-16 months, if not longer!
The stay at home waiver is not a guarantee that one can return, if there is a reason other than “unlawful presence” that prevents it, such as conviction of a crime, but it dramatically reduces the risks of this happening because of the screening that I-601A applications get in the United States. Also the processing time in the United States is only six to nine months.
The I-601A “stay-at-home” waiver is still available for foreign citizens who are not in immigration court. But by conscious, anti-immigrant design, two recent administrative law decisions by former U.S. Attorney General Jefferson B. Sessions, III now make it impossible for foreign citizens who are in immigration court removal (deportation) proceedings to utilize the I-601A procedure as a defense to removal.
To understand why one needs to know how the stay-at-home procedure worked in immigration court. Basically, the US citizen filed a I-130 (alien relative) petition while the case was pending in court, and if the petition was granted, then the foreign citizen paid for the visa processing fees charged by the Dept. of State to process a visa application. With these steps taken, the foreign citizen could request “administrative closure” of the case while the I-601A application was considered by the Dept. of Homeland Security (DHS).
An “admin closure” would take the case off the active docket, though it was still “on the books” and could be made active again at the request of either the foreign citizen or the government. If the waiver was granted, then the foreign citizen could fie a motion to put the case back on the active docket, and similtaneously move to terminate the case since the foreign citizen had a path to relief from removal by applying for a visa in the home country.
Two brutal and unnecessary (if not legally erroneous) decisions from former AG Sessions have now made it impossible for foreign citizens to do this. In Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018) decided in May 2018 Sessions decided that immigration judges do not have the authority to issue admin closure decisions, despite decades of prior practice where the procedure was freely utilized by the immigration courts.
Then, in September 2018, in Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018) Sessions issued another decision overturning years of practice by stating that immigration judges also do not have the inherent authority to terminate removal cases, unless DHS agrees.
The impact of these two decisions is devastating not only for the foreign citizens fighting removal in immigration court, but also their US citizen spouses who could demonstrate “extreme hardship” due to the absence of their husbands or wives. For aliens in proceedings, we now have a cruel, inhumane policy that is guaranteed to harm not only then but their US citizen spouses and chidren as well.
The strongest advice I can now give foreign citizens who can still benefit from the stay-at-home waiver is “Do not do anything that will land you in immigration court!”