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.

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