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

, The Connecticut Law Tribune

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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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