Bar News - October 19, 2016
Opinion: New Relief for Some Undocumented Immigrants in NH
By: George Bruno and Enrique Mesa
Although known by some as the “Deporter-in-Chief,” because of the record number of deportations over the past seven years (more than 3 million), President Barack Obama has now opened a small path for some undocumented residents in New Hampshire and around the United States to obtain a green card. As of Aug. 29, 2016, some immigrants who entered the US unlawfully or without documentation have a new option to avoid deportation.
Since 2013, immigrants who entered without permission were able to request a waiver of unlawful entry, provided they were married or had a parent that was a US citizen. A modification of this program now allows the US Customs and Immigration Service (USCIS) to extend a provisional waiver to include undocumented spouses of legal permanent residents, i.e. green card holders.
For immigrants who have been in this country unlawfully for 15, 20 or 30 years, this program offers significant relief by keeping families together. Before 2013, families would be separated sometimes up to 10 years through a lumbering administrative process. Now this process can take place while they are in the US.
To qualify for a provisional waiver, applicants must establish that their US citizen or lawful permanent resident spouses or parents would experience “extreme hardship” if the applicants are not allowed to return to the United States.
An important facet of the new rule requires the immigrant to return to the home country as the final step, after the waiver is approved, in order to be interviewed and receive a visa.
Not widely known is that if an immigrant overstays his or her visa by six months, the immigrant is subject to a three-year bar from returning to the US, if he or she should leave; or a 10-year bar, if the overstay is one year or more. These penalties, adopted during the Clinton Administration, often serve as an unintended incentive for an unlawful immigrant to stay in the US.
The final rule promulgated by the Department of Homeland Security 8 CFR Parts 103 and 212 (Expansion of Provisional Unlawful Presence Waivers of Inadmissibility) promotes family unity by reducing the time that eligible individuals are separated from their family members while they complete immigration processing abroad, while also improving administrative efficiency.
Whether this administrative relief will continue to be available after Jan. 20, 2017, will depend on who is elected the next president of the United States.
George Bruno and Enrique Mesa are attorneys at LawServe in Manchester, NH.