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Why The Expansion Of Family Unity Waivers Needs To Be Taken With A Grain Of Salt

The recent decision to expand provisional I-601 family unity waivers to more family members by President Obama is a step in the right direction.

However, one big problems still lurks. How many will be able to meet the requisite extreme hardship standard?

How many immigrants will be able to prove the factors of hardship show a severe enough suffering to warrant a favorable grant of discretion.

For this reason, the public hoopla surrounding the announcement needs to be taken with a grain of salt.

Obama Immigration Plan: Provisional Waivers Expanded, USCIS Tasked to Define, Broaden Eligibility Requirements
Michael Oleaga, Latin Post, December 15, 2014

President Barack Obama’s immigration executive actions provided new regulations and policies to immigrant visas and provisional waivers.

In a memorandum by U.S. Department of Homeland Security (DHS) Secretary Jeh Johnson to U.S. Citizenship and Immigration Services (USCIS) Director Leon Rodriguez, the executive actions affects I-601A provisional waivers to “all statutorily eligible classes of relatives for whom an immigrant visa is immediately available.”

Under current law, many undocumented immigrants, seeking to become green card holders, must return to their home country for their permanent resident interviews.

Not eligible to adjust status in the United States, they must embark on the consular processing path to legalization.

Unless these individuals can qualify for an exemption, they must leave the U.S. to go to their interviews for green cards abroad.

Yet, as soon as they leave, they are barred from re-entering the U.S. for three or ten years, and in some cases, for life.

They can seek forgiveness for living here without authorization. At present, this is done by filing an application for an I-601 waiver of inadmissibility.

Up until two years ago, this filing took place at the consulate in the applicant’s home country.

In 2013, the process was changed to allow immigrants who had been sponsored by a U.S. citizen spouse or parent to file for provisional approval while still in the United States. The narrow change left many immigrants in the same position as before.

This is where the new changes fit.

Now, immigration authorities are developing the rules to expand the provisional waiver process to include adult children of U.S citizens as well as the spouses and both unmarried minor and adult children of lawful permanent residents.

Is this good news for immigrants? Sure.

But here’s the big kicker. To win such waivers, immigrants must still prove that their qualifying relative will suffer extreme hardship if they are not allowed to return to the U.S.

Not ordinary hardship. Not unusual hardship.

Only extreme hardship wins a case.

So what’s extreme hardship?

The term has not been statutorily defined.

As a result, the government is also looking into this issue in an attempt to come up with a definition some 60 years after it became part of the immigration law lexicon.

The standard has always been rigorous. It is a screening mechanism to limit the number of approved permanent resident applications.

Some pundits have suggested this review will lead to a simpler standard.

I disagree.

As a green card lawyer, I doubt such an outcome. After all, the concept of extreme hardship is a screening mechanism to limit, not expand, the number of approved permanent residents.

Immigration News Curation By Carlos Batara