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President Obama's Immigration Accountability Executive Action and the Expansion of the Provisional Waiver Program

President Obama recently announced efforts to retool critical aspects of the immigration system. The President has authorized the Department of Homeland Security to significantly expand the use of deferred action to provide temporary protection from removal for millions of unauthorized immigrants currently in the U.S. This will happen through the expansion of the current Deferred Action for Childhood Arrivals (DACA) program, as well as the creation of a new deferred action program, Deferred Action for Parental Accountability (DAPA). This blog will focus on those new programs in more detail in weeks to come.

A part of this new Executive Action that has not received much attention is the expansion of the Provisional Waiver Program. Under current immigration law, some spouses and children of U.S. citizens and legal permanent residents, who are statutorily eligible for immigrant visas, must leave the country for the interview at the U.S. consulate in their home country. Depending on the length of time they have lived in the U.S. without permission, they face 3 to 10 year time bars from returning to the U.S. The only way to avoid these time bars is to file for a waiver and demonstrate that the absence from the U.S. will impose an extreme hardship on the U.S. citizen or legal permanent resident spouse or parent. In the past (prior to 2013), the individual could not even apply for the waiver until they had left the country for the consular interview.

In January 2013, the Department of Homeland Security (DHS) made a change in the regulations to allow spouses and children of U.S. citizens to apply for the waiver and obtain a decision prior to the consulate interview. This change in the regulations was a big improvement. as it did not require the undocumented individual to wait in his or her home country for a decision on the waiver. Not only did the regulation change end the extended wait in the home country for a decision on the waiver, but it also gave the immigrant an answer to whether the waiver would be granted prior to their consular interview.

Even though the 2013 provisional waiver change was an improvement, there were still serious problems with the provisional waiver program. One problem was that the provisional waiver did not apply to the spouse and children of legal permanent residents, as those in that group still had to apply for the waiver and wait for a decision while in their home country. The other problem with the provisional program has been the lack of clarity with regard to the "extreme hardship" standard and the difficulty in meeting this very high standard. The standard has been interpreted in the past to mean hardship beyond the expected or "normal" hardship that would be caused by family separation.

The Director of the United States Citizenship and Immigration Services (USCIS) has recently announced that USCIS will be providing additional guidance about the phrase "extreme hardship" with the purpose of providing broader use of this waiver program. In this recent announcement, the USCIS Director described the factors that should be considered in determining whether the "extreme hardship" standard had been met. The factors included, but were not limited to: family ties to the U.S. and the country of removal, conditions in the country of removal, the age of the U.S. citizen or permanent resident spouse or parent, the length of residence in the United States, relevant medical and mental health conditions, financial hardships, and educational hardships.

The USCIS Directors November 20, 2014, announcement as to the expansion of the provisional waiver program ended with the following quote, "I further direct USCIS to consider criteria by which a presumption of extreme hardship may be determined to exist." What exactly will this last intriguing statement mean? At this point, likely no one outside USCIS knows. However, reading between the lines, it sounds as if there will be a major shit in policy about how USCIS treats provisional waiver applications. Apparently, USCIS will be setting out criteria, that if met will mean, a presumption of entitlement to a waiver. In any event, it appears that USCIS is intent on broadening the use of the waiver program, which great news to all those needing waivers.

In the next post, Garibay Law will provide an overview of the expanded deferred action programs under the President's newly announced executive action.

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