Consider the following scenario: Mary, a U.S. citizen, is madly in love with Juan, an undocumented immigrant who came to this country across the border.
Juan and Mary get married and decide to initiate the process for Juan to become a Permanent Resident of the United States. How hard can it be? Juan has never been in trouble with the law, and his marriage to Mary, an American citizen, is legitimate.
Upon consulting with an immigration attorney, Juan and Mary are surprised to learn that while Mary can file the Petition for Juan, and it will most likely be approved, Juan will not be able to file for “Adjustment of Status” since having entered the country illegally, i.e. without going through inspection and admission at a port of entry (airport, port or border crossing), he will have to leave the United States and appear with Mary at the American consulate in his home country to apply for residency.
But if Juan leaves the country, by law he is barred from returning to the U.S. for 3 or 10 years, depending on whether Juan was in the U.S. for more than 6 months or more than a year.
What to do then? Juan cannot adjust status in the U.S. and has to leave his country to do so, but if he leaves then he will not be able to enter the U.S. for 10 years.
The U.S. Consulate, once it has interviewed Juan and Mary and determined that the marriage is legitimate, will authorize Juan to file a PERDON (or Waiver) with the Consulate, so that the Consulate will “forgive” those ten years of prohibition and allow Juan to enter the U.S. before that period.
Now, this FORGIVENESS cannot be asked for by just anyone. In addition to being the beneficiary of an approved petition, John must have a U.S. citizen spouse, or a U.S. citizen or resident parent seeking a waiver for him. If John had only U.S. citizen children, they would NOT be able to ask for this type of pardon for John.
Fortunately Juan has Mary, his American citizen wife, so he meets this requirement for FORGIVENESS.
But that is not the end of the requirements: Mary, has to be going through circumstances of extreme hardship, which make it extremely difficult for her to live in the United States without her husband, and which in turn prevent her from being able to live with Juan in his country.
It is uncertain how long Mary and Juan will be separated during this process, as it may be months between the first interview at the consulate and the second interview in which Juan must present the FORGIVENESS documents. To this must be added the time the U.S. Consulate takes to decide whether or not to grant the waiver. During this time, Juan will not be able to enter the United States.
The proposed change
The announcement was made in January 2012. The Obama administration proposed a modification in the way this WAIVER is currently adjudicated at U.S. consulates around the world.
The draft regulation was published on March 30 and is currently awaiting comments. The proposed rule provides that PERDON can be applied for in the United States and no longer at the U.S. consulate in the immigrant’s country of origin, thus shortening the time of separation of the immigrant and his or her family.
Everything else remains the same, i.e., with this new regulation, the situation for John and Mary would be as follows:
Mary petitions for her husband Juan in the United States. Once approved and without leaving the U.S., you will be able to submit the application for a waiver to the immigration service.
The law has not changed in terms of the requirements for a waiver, i.e., it is still necessary for the immigrant to have a U.S. citizen or U.S. resident spouse or parent who is seeking a waiver for the immigrant, and who is experiencing extreme hardship circumstances that make it impossible for the U.S. citizen or resident relative to live in the U.S. without the immigrant.
The immigration laws in the United States are extremely complicated, being this aspect and its application very complex. Finding circumstances of extreme hardship or difficulty for a FORGIVENESS case is something you should consult ONLY with an immigration attorney, a professional in the field.
Unfortunately, as has happened in previous cases, many unscrupulous people take advantage of these changes in the application of the standard to misinform, deceive people, and swindle them by offering impossible services or results.
Cuídese de los notarios, consultores en inmigración o cualquier persona no calificada y preparada en estos temas. Siempre busque la asesoría y los servicios de un abogado de inmigración para sus procesos y trámites migratorios.