On January 6th, 2012, President Obama proposed a change in immigration rules that would allow certain foreigners who are in the U.S. illegally to preprocess on an I-601 bar waiver. All of the other rules regarding immigration are exactly the same, except for this one change. There is no amnesty for illegals.
No one is offered legal status who cannot otherwise obtain it under existing law. The change is a matter of processing procedure only. Even so, the change in this rule will have a large impact on families in the U.S. where one spouse is a U.S. citizen and the other spouse is illegal. It affects spouses and adult children of U.S. citizens who entered the U.S. illegally.
Under existing law, a foreigner who entered the U.S. illegally cannot normally obtain any lawful immigration status, with very few exceptions. This applies to foreigners who married U.S. citizens, those who have U.S. citizen children, and so forth. Unless there is a rare exception, the only way to be made legal is to depart the U.S. and come back legally on a visa.
The problem is that many illegals trigger a bar when departing the U.S. Those who are in the U.S. for more than 6 months after becoming an adult (over 18) will trigger a 3 year bar from the U.S. upon departure. It becomes a 10 year bar if the foreigner was in the U.S. more than one year after turning 18 years of age. The bar applies regardless of a marriage to a U.S. citizen.
Immediate family members may obtain a waiver of the bar by showing that the U.S. citizen will suffer extreme hardship if the foreigner is not allowed back into the U.S. Essentially, the U.S. citizen must show compelling evidence that he or she is unable to reside abroad, outside the U.S. with the foreign family member. An example would be late stage cancer where the U.S. citizen would likely die if forced to depart the U.S. to live abroad. Cancer is one example. Each case is different. Each family circumstance is different.
Often, bar waiver applications take many months to process while the foreigner remains outside the U.S. In most circumstances, the U.S. citizen suffers ongoing extreme hardships while the husband or wife remains abroad. The wait time outside the U.S. makes an extremely difficult circumstance even more difficult on the U.S. citizen. All of this is how things currently operate.
Apply for a Hardship Waiver Now
The new Obama proposal is to allow the family to apply for a hardship waiver now, before departing the U.S. and triggering a bar. If the bar can be waived, then the case will proceed to a U.S. consulate abroad for further processing. The foreigner will depart the U.S. as usual — triggering the bar — but then can return to the U.S. more quickly since the bar waiver application has already been processed and approved. The benefit is that the foreigner can remain in the U.S. and see if the bar waiver will be successful or not. If so, then he or she can go to the home country and pick up the immigrant visa and return to the U.S. legally and be green card approved. The change in processing shortens the time outside the U.S. and also removes any doubt about whether the bar waiver will be approved.
A benefit for ICE enforcement is when the bar is not approved. Based on the application, ICE knows where the foreigner lives. ICE can pick up and detain the foreigner for deportation. This way, the new rule helps U.S. citizens who are in dire stress and also helps ICE agents enforce deportation if the bar waiver application is not successful. Regardless of the new rule under consideration, it is important to not take chances and only file for a bar waiver if you have a strong case.