USCIS One Step Closer to Adopting Improvement to Immigration Waiver Process

Written by on April 4, 2012 in Family-Based Immigration with 12 Comments

A provision of the immigration law commonly known as the “3 and 10 year bars” has proven to be one of the most heart-breaking of the many draconian changes made to the immigration law at the time. Since its enactment in 1996, the provision—which imposes re-entry bars of 3 to 10 years on immigrants who are present in the U.S. illegally, leave the U.S., and want to re-enter lawfully—often separates family members, even if they are otherwise entitled to legal status in the U.S. Now, however, USCIS has published a proposed rule that will reduce, although not eliminate, the hardships created by this provision of law. The announcement has been received favorably, although with some skepticism, within the immigration community.

USCIS’s new rule change, which was posted in the Federal Register this week, will allow some unauthorized immigrants (mostly direct family members of U.S. citizens) who are applying for permanent residence to apply for a waiver to the 3 and 10 year bar from within the United States. If approved, applicants would receive a “provisional waiver” that would be finalized after they leave the country to pick up their visa application.

Why is this rule change good? The new regulation minimizes the amount of time that applicants would have to be away from their families before being admitted back into the United States.

Under current law unauthorized immigrants applying for permanent residence must leave the country to actually complete the process. Leaving the U.S., however, can trigger a ban on re-entry of 3 or 10 years, depending on how long someone lived in the U.S. unlawfully. While an immigrant can apply for a waiver of the ban, that currently must be done abroad, and may take a very long time to process, with no guarantee that the waiver will be granted. As the Los Angeles Times put it, “that’s an untenable choice: leave the U.S. and run the risk of being separated from a spouse for years, or stay and live in fear of deportation.’

The public now has sixty days to comment on the rule change, including making suggestions for expanding the scope of the rule to include a larger group of applicants and other fixes that advocates believe are necessary to make the best of a bad law. Comments are not limited just to technical fixes and all people affected by the rule change should be encouraged to make their concerns known.

Many immigration groups, including the American Immigration Lawyers Association, have praised the release of the rule, even while arguing that more must be done. Eleanor Pelta, AILA president, noted that the rule would be a positive step for keeping families together that will “literally save lives.” She continued,

People have been kidnapped and murdered waiting for waivers in Juarez, Mexico, and other countries. It’s a move that will be less destructive to families and bring about a fairer and more streamlined waiver process.

Unfortunately USCIS’s proposed rule would exclude many people who are stuck in the same situation . . . The proposed rule only applies to a limited group of applicants, namely the immediate relatives of U.S. citizens who can show extreme hardship to a U.S. citizen spouse or parent. This leaves out broad categories of close family members who also have to wait abroad for their waiver, including the spouses and children of people who have green cards and the adult children of U.S. citizens.

Despite these concerns, there’s little doubt that the rule is an improvement on the current situation, which may be why critics of the Obama administration have called it an end run around Congress in which the President plays by his own rules. However, anyone wading through the detailed and sometimes tedious regulatory immigration processes will tell you that this rule is a modest tweak to a process that has been becoming more and more unwieldy in the last fifteen years.

Photo by Clover.

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  • Juan C. Calzetta, III, Esq.

    This is wonderful news but truly only a first step in fashioning a system that is logical, efficient, in the national interest, and compassionate.

    It is absurd that in many cases, one of two parents must leave “home” to wait for upwards of a year for Consular Processing in dangerous Ciudad Juarez while the other parent struggles to maintain employment and take care of one or more children – nearly impossible and frankly quite cruel.

    Moreover, too often I have met foreign nationals who have lived in the USA all their life and must leave to await Consular Processing in a country they do not know, whose language they do not speak, and where they have no family. It’s insane.

    Lastly, the “Extreme Hardship” standard necessary to secure a waiver for Unlawful Presence must also change. It perversely favors families in the direst social, economic, and health conditions and disfavors healthy, robust families who are usually stronger contributors to the US economy. Truly utter nonsense.

    However, this proposed rule does represent a positive change and I for one hope it survives the administrative rulemaking process.

  • Love2watch

    Well I believe this will be a good start. However, this changes applies only to hose that are inside the United States. What about those who left to secure thier Visa at the Consulate and trying to do the right thing but it turns out only to be “catch 22? What will happened to these families? According to the Policy they are not included. I think this is unfair, since they are also immediate relative of USC. Any clarification on these?

    • HGHG

      I would love to know if you receive an answer on this. My husband had to return to his home country,. I am a USC. He was banned for 3 years and then we went back and they changed it to a 10 year bar. Why they didnt do that the first time I have no idea. We were actually there after his 3 year when he was denied again. If this changes will it affect those (or help those) that are currently in process?

  • This is a good start and it should help a lot of people. However, something should be done for people with removal orders. There are so many people that are married to US citizens with children born in the US that cannot change their status even when the I-130 has been approved because they have a removal order against them.

  • HumanBeing

    This is a humanitarian and welcome change, yes. But the ill defined and extraordinary hardship requirements are unjust, in my view. I believe the 3 10 year bar is extreme, unjust punishment when applied to those who entered without inspection. And, it is applied to those who crossed prior to the date of the law’s enactment. I believe it is unconstitutional not only to those who entered illegally but also to their spouses/family wanting desperately to sponsor them. This law runs counter to all the Universal Declaration of Human Rights and our U.S. Constitution/Bill of Rights stand for. I am thinking in particular of the Mexican Nationals who have historically crossed the border for work. Our economies and histories are very much interconnected. The fact that reform of our immigration laws has not taken place makes me think our government is no longer working.

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  • Laura Irazoque

    I agree this would be a wonderful change, butt what about the family members wich are stuck on catch 22, I have been going back and forth to Mexico for 3 years now, as I lost my job, 1 vehicle and almost my home, not to mention my mothers deadly health condition : ( I need my spouse back!!!!!!!!!! Please include the ones which are already in their country trying to do the process correctly!!!!

    • jessica

      How long did you apply for the waiver because you said you been going to Mexico for 3 years.

    • HGHG

      That is exactly what I am trying to figure out. My husband had his 3 yr appt after he had been there for 3 years and they then gave him a 10 yr bar so how will it help people in our situation?

  • Angie

    What can we do? I am a citizen, my husband is not, he’s from MX. We have a child & were approved for I-130. We just went back to lawyer to start 601 waiver, however, the lawyer suddenly realized he’d overlooked the fact that my husband had a voluntary return in ’03. We were informed that we have no options now because that means he’s barred for 10 yrs. I’m at a loss of what to do now. We are good people who work hard & only want to make a better life for our family. My son & I can’t make it on our on without my husband. There has to be something we can do to get him legal without leaving the US. Any advice?

    • Allison Miranda

      I have the same situation. I am a USC. I met my husband in 2004 while he was living here illegally. He’s Mexican. We had our first child in 2006, married in 2007 and started working with an immigration lawyer shortly after. January 4, 2011 my husband left the US and went to his appt. in Juarez. I was 5 months pregnant with our second daughter at the time. January 7th 2011 was his appt. He was denied and given a 10 year ban on his case because he came to the US in 2001 illegally, returned to Mexico in 2003 to visit his sick dad, then returned a second time illegally. He was in US from 2003-2011. Never had a speeding ticket, jail time, drugs, drinking, etc. We are such good people who were trying to do the right thing! After the birth of our daughter in May 2011 I moved to Mexico with my 2 young daughters. We were there for one year but faced extreme poverty and an unsafe living environment. I moved back to the US July 2012. My husband and i are trying to keep our marriage together from separate countries. Raising 2 children on my own and working full time is the hardest thing I have ever done! I hope things work out for your case and family. Stay strong! Hope for immigration change this year.

  • ghisela

    This 3 to 10 years bar needs to change 3 years is enough punishment for anyone who has entered the USA illegally but 10 years is way to much especially for someone that has stayed in USA with no criminal records or any frauds or violations. I entered at the age of 10 years old I was young my father took me but then he left me when i was 15 i was working and going to school at the same time i graduated went to college but then my work permit expired i was blocked from everything by myself i tried getting help but no one helped me out so i had no choice but to leave because i didn’t wanna be living with the governments money or hiding from the cops. I have my boyfriend his an USA citizen i never though we were gonna still be together but we are and now we wanna get marry but i´m facing the 10 years bar super unfair. The worse part is the hardship like really? so lame