I-601 Hardship Waivers: What's the Buzz All About?

Recently, U.S. Citizenship and Immigration Service (CIS) announced a new policy for I-601 hardship waivers. This has been getting a lot of buzz recently.  I have gotten several calls to my law firm because of the announcement.

This topic usually comes up while answering one of the more common questions undocumented people might have.  "I've married a US citizen.  Do I have to leave the country to get a green card?"  The answer is, most surely, yes.  Undocumented people cannot adjust status in the country just by marrying a US citizen (with a very few limited exceptions).  The undocumented spouse will need to leave the country and apply for a visa at the consulate in his or her country of origin.

So what's the problem with that?  Most undocumented people have lived in the U.S illegally for a period of more than one year.  If a person lives here for more than one year illegally and then leaves, he or she will not be able to apply for immigration benefits until 10 years have passed - this is known as the 10-year bar.

Most married couples are not willing to be separated for 10 years just to get status so undocumented spouses usually just choose to stay in the country.

However, there's a waiver - the I-601 hardship waiver.  If the waiver is granted, the undocumented spouse may return the U.S. without waiting 10 years.  If the undocumented spouse can show extreme hardship to the US citizen spouse without the grant of the visa, he or she gets back in.  Showing extreme hardship is not easy, though.

So why don't more people apply for the waiver?  The waiver must be applied for only after leaving the country.  Technically, this is because the 10-year bar does not even apply until the undocumented spouse leaves.  This waiver can take many months to receive, and sometimes more than a year.  Also, there's no guarantee it will be granted.  For most couples, it's not worth the time out of the country and the risk.

So what's changed?  CIS will begin accepting waiver applications while the undocumented spouse is still in the country.  This means that he or she will not leave the country until the waiver is granted.  Then the time outside of the country will be much shorter, maybe only a couple of months.

This is great, right?!  It seems like it is.  However, there's a really big question that hasn't been answered.  What will CIS do with denied waiver applications?  It can do two things: 1. deny the application and leave it at that, or 2. refer the denied spouse to ICE for removal proceedings.

What CIS decides to do is very important.  If it will not refer to ICE denied cases, many people will try to take advantage of this waiver.  What's the harm in trying?  However, if CIS refers to ICE, many people will still decide to forego this possibility.  The risk of deportation is not for the light-hearted.

Stay tuned for further developments!

Interesting issues with Temporary Protected Status

Recently, I encountered two issues with an area of law that I was formerly rather unfamiliar with - Temporary Protected Status. For the uninitiated, TPS is a form of status for individuals from certain countries that are suffering from natural disasters, civil wars, and other extraordinary circumstances. Because TPS is only intended for temporary relief, it is a rather flimsy status. However, for many undocumented people, it is the only hope of living in the U.S. legally. Thus these individuals want to get as much out of their status as possible.

  Issue #1 The TPS Trick

 Can someone eligible to adjust status to permanent resident do so from TPS status? Yes. A person with TPS is considered "in status." Here's the catch: many people entered the U.S. illegally before getting TPS status. These people can't adjust because of their unlawful entry. But there's currently a neat little trick you can do to get around this. This only works for immediate relatives, i.e. children, parents, and spouses of U.S. citizens.

 Here's what you do. You apply for "advance parole." This is a travel document for, among other things, people with TPS. With the advance parole the person leaves the country and then comes back in. If that person is an immediate relative, he has cured his illegal entry. Sounds simple, right? Not so fast.

 If the person was here unlawfully before getting TPS status from 6 months to 1 year, he has a three-year bar before he can adjust status. If he was here for more than one year, he has a ten-year bar before he can adjust status. Where did the bar come from? If you leave the country after being here between 6 months and a year unlawfully, you have a three-year bar to admission. If you leave and have been here more than one year, you have a ten-year bar.

 So why can the person get back in with advance parole? It's for humanitarian purposes and advance parole is not really considered an admission according to immigration law. So what to do about the bar? If you're the child or spouse of a US citizen, you apply for a hardship waiver. If you can prove hardship, you get to adjust without waiting for the bar. But what if you're a parent of US citizen? Too bad - the waiver doesn't apply to you. Currently, the law allows for the person to wait for the bar to pass inside the U.S. A parent of a U.S. citizen that triggered the 10-year bar by using advance parole could potentially adjust status in 10 years.

 But this is dangerous! What if TPS ends? What if the current interpretation changes? It's a scary choice but the only current way for someone in this situation to adjust and possibly stay in the U.S at the same time.


Issue #2 After-arriving Children

 Everyone with TPS has to have been present at the time of initial registration for the country the person is from. So what if you have a child that arrives after that date. Can they get TPS as a derivative? According to the 3rd and 4th Circuits - NO! The child would have to have been present on the date required for those with TPS status. Is this the end of the story? Possibly, no.

 Each circuit can decide differently. If this situation came up for litigation, our 9th Circuit could go the other way and say the after-arrived child could register as a derivative. So what should after-arrived children do in the 9th Circuit? Don't apply for TPS unless you want to get placed in deportation proceedings and serve as the test case! Sure you might get to stay and be an immigration precedent-setting hero. But you could get deported.

 I'm keeping an eye on this issue to see what happens. Maybe we'll get some good news on it one of these days.

DHS's new policy is not unconstitutional

DHS recently informed the public of a new policy to review the 300,000 deportation cases currently in the system and close those that are considered low-priority. Some have claimed that President Obama has used this new policy to go around Congress, thereby making his action unconstitutional. However, the process that DHS is using to close these cases is not new. In fact, it has been in use for many years. DHS will close cases using an authority known as prosecutorial discretion. Immigration authorities can use their judgment in deciding which cases to prosecute and which to close. They may do this for many reasons including fairness and administrative backlog.

This new policy is a broad use of the agency's prosecutorial discretion. It comes at a time when resources are scarce in the government. The Obama administration hopes to focus on deportation of those that pose some sort of danger to our country. The cases that are closed include those concerning youth, the elderly, and people who have lived here since childhood.

Those that are claiming that DHS's new policy in unconstitutional are incorrect in their understanding of the enforcement of immigration laws. The government has no obligation to deport everyone that is deportable. Whether one agrees with the use of prosecutorial discretion is a political and philosophical issue and does not change that it is legal and within the bounds of constitutional process.

Also, this policy is not necessarily a form of amnesty. Amnesty would grant those whose cases are administratively closed a green card or some form of status. In this case, those who have their cases closed will receive work authorization but no legal status. This policy is simply an attempt to get by until Congress passes much-needed immigration reform.

More inforation here: http://www.latimes.com/news/local/la-me-deportation-review-20110829,0,4675057.story

Recent California in-state tuition case

A friend recently forwarded me an article from the Sac Bee asking my opinion on a recent US Supreme Court decision to not review the case Martinez v. Regents of the University of California. The California Supreme Court found the law valid.

Currently, there is a law that any high school student that has attended high school in the state for at least three years will be charged in-state tuition upon entering a state college or university. The residency of the student's parents is not relevant as to whether the student gets in-state tuition.

According to the article, this law benefits not only children of undocumented parents but students in boarding schools and those whose parents have moved out of the state. For these students, the law encourages them to stay in the state.

My friend was more concerned about the implications of allowing undocumented individuals to pay in-state tuition. I explained that the children of undocumented parents do not have capacity, in my opinion, to break the immigration laws. These children were brought here by their parents and could not make the decision whether to immigrate from themselves. And thus, they should not be punished when they are just as much residents of California as other students.

Also, I think that the argument for allowing undocumented students to have in-state tuition is even stronger than for boarding students. Because their parents live in California, they pay property taxes, either directly by owning a home or indirectly through renting. By paying property taxes, these parents are contributing to public education. This contribution is the basis for in-state tuition. Those from out of state have not paid taxes and thus pay higher tuition. Boarding students' parents are not paying California property taxes.

Overall, I think the law is very wise and am glad that it has been upheld by the judicial system.

Here is the link to the article.
href="http://www.sacbee.com/2011/06/08/3684470/court-refuses-to-punish-kids-of.html">

What's new with same-sex couples and immigration

I recently gave a short presentation on this topic at a law school club meeting.

First, an immigration judge in New York suspended the deportation of the same-sex spouse of an American citizen so that the couple could challenge the constitutionality of DOMA.
Currently, the federal government does not recognize same-sex marriages performed in states such as Connecticut, Iowa, or Massachusetts. An Argentine national came here several years ago and overstayed her visa, making her deportable. While here, she married a US citizen. On a raid of a passenger bus, this Argentine lady was found to be here illegally and placed in deportation proceedings. As the legal spouse of a US citizen, she would be entitled to apply for certain types of relief from deportation. Without that relationship, she has no relief from deportation.
This lady is legally married to a US citizen. They were married in Connecticut and live in New York (which does not perform same-sex marriages but recognizes those performed in other states). The Defense of Marriage Act defines marriage for purposes of the federal government to only be between a man and a woman. The Obama administration has recently announced that it believes DOMA to be unconstitutional and will not defend it in court. This announcement has clouded the validity of DOMA for this particular immigration judge.
Should DOMA be found unconstitutional, this Argentine lady's deportation will have been unnecessary and will have caused great harm to her family. By suspending the deportation, this immigration judge is allowing her family to stay together while the courts determine whether DOMA is constitutional. Other immigration judges are not required to follow this judge's lead. However, many judges may choose to act as this judge did in similar situations.

Second, US Citizenship and Immigration Services announced that it would put applications for immigration benefits from same-sex spouses into pending status as opposed to denying them outright. This is because it is not clear whether DOMA is constitutional. However, several days later, USCIS announced it would resume denying these types of applications because DOMA is still valid.
I find this dichotomy interesting. The Justice Department will not defend DOMA in court but Homeland Security (which administers USCIS) will enforce a law that the administration believes unconstitutional. So at this point, the administration will not defend the law, but it will enforce it.

Arizona is at it again

Some state legislators are trying to push through legislation that would prohibit those born in this country to parents that are neither US citizens or lawful permanent residents from gaining citizenship. Some experts are arguing that the 14th Amendment, which gives citizenship to everyone born in the US, was only meant to clarify that former slaves and their children are citizens.
The bill does not look like it is getting very far at this point. If it were to pass, I'm sure there would be challenges all the way to the Supreme Court. I don't think we have enough strict constructionists on the Court to swing a decision in favor of a bill like this. I understand the argument that such a bill could be constitutional (not that I agree). However, even if it were, we have a long history of giving citizenship by place of birth as opposed to descent, and I see no reason to change that.

http://azstarnet.com/news/local/border/article_e3f477cf-fdb2-5609-afd1-db34e3f9dfd0.html

The states figure out for themselves why the federal government is selective about immigration enforcement

I just read an article attached below. After Arizona passed its controversial immigration legislation, several states jumped on the boat and drafted copycat legislation. However, most of these bills have been abandoned or redrafted or are just not faring well. The reason - state budgets! It costs a lot of money to enforce immigration as with any other law. The federal government tends to focus on criminal aliens. In my opinion, this is largely due to budget constraints. If you only have so much money for this particular function of government, you're going to use it up on the most urgent issue. The federal government considers criminal aliens a higher priority for removal than an otherwise law-abiding illegal aliens.
Arizonans passed their legislation because they felt the federal government wasn't doing its job. Other states have now realized while facing budget problems that the federal government may have been onto something. It's really expensive to enforce immigration measures against peaceful citizens if it requires taking funding away from other sources. I'm glad that states are now realizing what should be a priority even though I'm not glad about the recession.

http://www.washingtonpost.com/wp-dyn/content/article/2011/01/28/AR2011012806902.html