Hardship Waiver Process Gets Easier
To file or not to file.
That is the question for U.S. citizens who have married a foreign-born spouse who entered the country illegally.
In order to gain legal status for the non-citizen spouse, the U.S. citizen spouse has to successfully file a spousal petition and a separate waiver application proving that it would be an extreme hardship if his or her spouse is barred from the country. The couple also has to show that there is nothing in the non-citizen spouse’s background that presents a permanent bar to legal entry.
The non-citizen spouse has to return to his or her native country to await the government’s decision. The wait for a decision can stretch into many months or, in some cases, over a year while the U.S. citizen spouse struggles alone at home.
All the while, the couple endures a separation which may become permanent should the government decide that the case does not reach the extremely high bar that an extreme hardship application entails.
Because of this, many decide to continue to live under the radar, risking discovery but averting the certain separation and hardship involved if a petition is filed.
Now, that is about to change.
The United States Citizenship and Immigration Services is poised to reveal a rule change that would allow the non-citizen spouse to seek provisional approval of the hardship application before traveling to his or her homeland. The agency has published the proposed rule change in the Federal Register and the period during which the public can comment has ended.
In an advisory on its website, the USCIS cautions that those with a consular interview already scheduled abroad for the so-called hardship waiver should not cancel with hopes of benefiting from the new policy. The agency also reminds couples that, even if a hardship can be proved, the application can still be rejected if there are other skeletons in the non-citizen spouse’s closet – such as certain criminal offenses – which would bar entry.
In my sometimes dual existence as a journalist, I had a long, emotionally charged conversation with a U.S. citizen whose case exemplified the hardships inherent in the current system. When she married the love of her life, she believed that all she had to do was file for a green card for him and he would be approved.
But he had slipped across the U.S. border en route from his native Ecuador years ago and, so, was deemed inadmissible to the U.S. unless his banishment would present a hardship to his wife. Rather than be separated from him for many months, she moved to Ecuador to be with him even though that meant separation from her family, some of whom were ill and depended on her for help.
She became pregnant soon after and was in tears over the prospect of raising the couple’s child in a country where poverty and violence stalks many residents. For her, at least, the policy change came too little, too late.
But for others contemplating a life out of the shadows, the rule modification offers renewed hope. If you are considering taking the plunge, it is best to wait until the rule becomes final at the end of the year.
You also should consult an attorney to determine whether you can present a case that is more likely to win the approval of the government. Rejections of such cases cannot be appealed.
Those who have strong cases will soon be able to make that agonizing decision of whether to file, knowing that their time away from their loved ones will mercifully be cut shorter.