'Stateside' Waiver: A Back Door To Immigration Reform?

Congress is on the precipice of enacting comprehensive immigration reform, but a recent policy change by the Department of Homeland Security (DHS) is allowing a limited number of undocumented immigrants to access their own path to legal permanent residency and U.S. citizenship now.

For most immigrants, the pathway to U.S. citizenship requires passing through several distinct phases: legal entry into the U.S.; maintenance of legal status through renewal of visas; the application and acquisition of legal permanent residency; maintenance of permanent residency for three to five years; and finally, the application for citizenship. If even one element is missing — for example, if the person legally entered the U.S. with a visa but eventually became "out of status," or the person entered the U.S. without legal permission — then generally there is no available path to citizenship. This also means there is no path to legal permanent residency, no ability to obtain any legal status or legal authorization to work or to obtain a driver's license. These immigrants have reached a dead end.


DHS has provided a solution to a narrowly defined segment of this population through a policy change that became effective on March 4, 2013. This minor procedural modification is having a significant impact on U.S. families for whom legal permanent residency was previously not an option.

Legal permanent residency in the U.S. is a goal for many immigrants. There are several enumerated statutory requirements for permanent resident status. One requirement is that the person never incurred "unlawful presence" in the U.S. "Unlawful presence" in the U.S. — either because an immigrant never had any legal status or because his legal status expired and he remained in the U.S. — will make an applicant "inadmissible." "Unlawful presence" inadmissibility has created the dead-end situation many face.

Only Congress can amend the statutory requirements that individuals must meet to qualify for legal permanent residency, including the requirement of no "unlawful presence." DHS cannot make new laws or take any action that would grant permanent resident status to individuals who do not meet the statutory requirements for that status. Congress has yet to act to address those who face a dead-end situation, so DHS created a narrow opportunity that supports the core immigration principles of family unity. The Homeland Security Secretary implemented a "provisional unlawful presence waiver" process to waive the ground of inadmissibility for "unlawful presence."

10-Year Wait

Prior to this policy modification, a legal permanent residency applicant deemed to be an "unlawful presence" was required to leave the U.S. and file the waiver at the consulate in his or her home country.??The major problem with this process was that once the person left the U.S. he or she risked being stuck in his or her home country if the waiver was denied. Those with a denied waiver would have their families torn apart for 10 years until the applicant was allowed to apply for entry into the U.S. again. This meant that a married couple with a U.S. citizen spouse and an "unlawful presence" spouse could be separated for a decade.

Out of fear of losing their family, many people did not risk leaving the U.S. or even applying for permanent residency. If an individual did take the risk and apply, the applicant was required to file the waiver at the U.S. consulate in their country of citizenship and then had to wait between six and 18 months for a decision. During that time, the individual remained outside the U.S. If the waiver was denied, there was no appeals process and the applicant would be barred from re-entry into the U.S.

The new provisional unlawful presence waiver, which is also referred to as the "Stateside" waiver, allows a spouse or child of a U.S. citizen who is in the country illegally to remain here with U.S. citizen family members while the waiver application for legal permanent residency is processed. DHS changed its current process for the filing and adjudication of the waiver.

Although, the applicant is still required to leave the U.S. and return to their home country before permanent residency is issued, there are many benefits to the "Stateside" waiver. It reduces the risk of a 10-year bar to re-entry into the U.S. following the interview in their home country.??

This new "Stateside" process removes the requirements of applicants to schedule a "waiver filing" appointment with the U.S. embassy or consulate, which in some cases took months to schedule. The change also reduces the time the individual is required to wait for a decision. Now, those eligible for this provisional "Stateside" waiver are able to stay in the U.S. while the waiver application is pending. If the waiver is denied, the applicant is not stuck outside the U.S. and remains with his or her family in the U.S.

The benefits of this policy extend only to a narrow group, identified as "immediate relatives." Immediate relatives are defined by the statutory language of the Immigration and Naturalization Act (INA) as children of U.S. citizens and spouses of U.S. citizens. This restriction presumably assuages those who fear the use of "anchor babies" to provide legal status to parents. That means spouses of legal permanent residents cannot apply for this and parents of U.S. citizen children, regardless of the children's age, cannot use this. It also excludes U.S. citizen siblings, aunts, uncles, cousins or grandparents from applying for their "unlawful presence" relatives.

The eligibility standard for the waiver has not changed and remains high. Extreme hardship is the statutory requirement that an applicant must meet to qualify for an unlawful presence waiver. The adjudicators look at whether the U.S. citizen relative would suffer "extreme hardship" if the applicant was not allowed to remain in the U.S. or if the U.S. citizen relative was forced to leave the U.S. in order to maintain family unity.

The INA does not define the term, and federal courts have not specifically defined "extreme hardship" through case law. The Board of Immigration Appeals has stated that "extreme hardship" is not a definable term of fixed and inflexible meaning, but that the elements to establish extreme hardship are dependent upon the facts and circumstances of each case. The adjudicator looks at the totality of the applicant's circumstances and any supporting evidence to determine whether the qualifying relative will experience extreme hardship. The extreme hardship is only relevant as to the U.S. citizen relative and USCIS does not consider any hardship to the "unlawful presence" applicant.

The excitement of pending comprehensive immigration reform has already been experienced by the limited "immediate relatives" that are eligible for the "Stateside" waiver. This narrow window that has cracked open permits a U.S. family with an "unlawful presence" family member to stay together as legal permanent residency is pursued. DHS anticipates that this new provisional unlawful presence waiver process will significantly reduce the time that U.S. citizens are separated from their immediate relatives, which is a goal these families are grateful to be able to pursue now. •

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