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Does The New Immigration Law Contain Any Changes To The Waiver Process?

| Nov 4, 2013 | New Immigration Laws |

Last week saw the introduction of a new immigration bill H.R. 3431 (entitled “American Families United Act”). A bipartisan bill co-sponsored by Rep. Beto O’Rourke (D-Texas) and Rep. Steve Pearce (R-NM), it surprisingly has not received as much attention as one would think, considering some of the significant and important changes it seeks to implement. By no means is this a comprehensive, sweeping type of reform bill, which is perhaps why it has not generated much media coverage. The bill even makes clear that it is not some sort of legalization program. However, this is progressive, reform minded legislation. If it can make its way through an intractable, deadlocked Congress, it would potentially usher in important changes to an existing system that everyone recognizes is not working. The changes in the bill specifically address hardship, and would provide much needed room for fairness to spouses, parents and children of US citizens, as it aims to do.

The bill, while relatively short, covers a wide swath of areas that involve some aspect of “hardship,” and what it does is essentially allow immigration officers as well as Immigration Judges the opportunity to exercise more discretion on a case by case basis under certain circumstances to individuals that would not otherwise qualify for some sort of relief or waiver under the present austere standards currently in place. To go over all of the proposed changes is beyond the scope of this piece, although I would certainly like to address them all in future articles. Having said that, there are a few salient aspects of the bill that are worth noting. One topic which I would like to discuss in this entry pertains to the unlawful presence bar. There was much excitement and optimism when the provisional waiver rule of the unlawful presence bars became effective this year. It was hoped that the government would be begin adjudicating these hardship waivers in a more equitable and expedient manner with a heightened sensitivity towards humanitarian issues. The reality, unfortunately, has proven different, with a statistically lower than expected approval rate.

The bill contains some critical amendments to the unlawful presence bar provisions found in INA 212(a)(9)(B), which codifies the three and ten-year bars. Currently, under subsection iii, no time under the age of 18 counts towards an individual’s accrual of unlawful presence. Under the amendment, the three and ten year bars will be held not to apply to beneficiaries of approved petitions under INA 101(a)(15)(H) who have earned at least a Bachelor’s degree and who had not yet reached the age of 16 at the time of initial entry. Another far-reaching revision to the Immigration and Nationality Act within the bill regards the standard used to adjudicate waivers of the three and ten year bars. Under the law currently in place today, the individual seeking the waiver must demonstrate that he or she is the spouse or son or daughter of a US citizen or lawful permanent resident, and that refusal of the visa would result in “extreme hardship” to the US Citizen/LPR spouse or parent. H.R. 3431 opens up the waiver to a whole new class of potentially deserving applicants by adding parents to the pool of eligible applicants and allowing hardship to be demonstrated not only to the alien’s parent or spouse, but also to an alien’s son or daughter. In addition, and equally as important, “extreme hardship” would be replaced by just “hardship.” The bill recognizes how herculean the task of qualifying for this particular waiver is, and how its disparate results betray its defects as what is supposed to be ameliorative mechanism for deserving cases. What exactly is “extreme” and what makes person A’s hardship more extreme than person B’s? The bill cuts out the arbitrariness of the calculus and keeps the standard at “hardship” where it reasonably should be. Additionally, it specifically states “for purposes of this clause, family separation in and of itself shall be deemed a hardship.”

These type of changes to the unlawful presence bar are beneficial because they are measured and fair. In no way is the proposal doing away with the bar. There must be some sort of penalty in place to maintain the integrity of our immigration system. Obviously, people cannot be coming here, overstaying, leaving, and then coming back legally without consequence. Moreover, cutting out “extreme” does not necessarily make everything easier. Applicants must still demonstrate hardship, which is easier said than done. One doesn’t just get approved because one cries “hardship.” Hardship must be demonstrated through a careful compilation of compelling evidence that illuminates in concrete, real life terms just how distressing life for the qualifying relative would be. Merely showing the existence of a family relationship would not pass muster. One must still show the bona fide nature of the family relationship and how physical separation of the parties would affect that relationship. It will allow adjudicators who are restricted by current rules and practices to exercise their humanity in select cases that truly warrant an exception. Even a change like this to our current system would affect millions of people currently stranded by the rules and promote the cherished value of family unity.

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