Points to Colorado Military Family Separated for Years
Letter to CIS Chief Offers Comments on Provisional Waivers for Immediate Relatives
Colorado U.S. Senator Michael Bennet and Sen. Bob Menendez (D-N.J.) have weighed in on a proposal that would allow family members of U.S. citizens to stay in the United States with their families while they apply for a visa. The proposal would help keep families together and avoid the long separations often caused by the current immigration system.
“Our current immigration system takes a huge toll on families,” Bennet said. “This small but significant step would provide a common-sense fix to our outdated visa system and help U.S. citizens keep their families together.
In a letter to Chief Sunday Aigbe of the Regulatory Products Division of the U.S. Citizenship and Immigration Services (CIS), Bennet and Menendez highlight the story of Coloradan Sgt. James Carbajal, his wife Gabriela, and their 3 year old son, who have been separated for the last three years. Their case is indicative of the consequences for families applying for visas under current system, which requires undocumented spouses and children of U.S. citizens and permanent residents to leave the country before they apply for a visa.
Carbajal, a U.S. service member who has served in Iraq, and the couple’s son are U.S. citizens, but Carbajal’s wife and son have been forced to wait in the state of Morelos, Mexico while she applies for a visa. This forced time apart has taken a considerable financial and emotional impact on the family, an undue hardship given Carbajal’s military service.
The rule proposed by the administration would allow families like Sgt. Carbajal’s to remain together in the U.S. through a provisional hardship waiver while they go through the visa application process. The proposed rule would not allow for interim benefits such as employment authorization or provide lawful status.
In the letter, Bennet and Menendez applauded the proposal and urged the Administration to expand the waivers to include adult children, to clarify the definition of “extreme hardship” and to adjust the waiver process to create efficiency and transparency within system.
“We commend the Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) for creating this provisional waiver process which will promote family unity, increase transparency, and increase efficiencies in the immigration system,” Bennet and Menendez wrote in the letter. “This proposed rule will reduce the amount of time that families are separated and decrease the amount of time spent in dangerous conditions abroad.“
The moment potential visa applicants are out of the country, they are barred from returning for three years if they were in the United States without authorization for 180 days and for 10 years if they were in the United States without authorization for a year or more. These individuals can apply for hardship waivers in order to return to their families, but must remain abroad and separated from their loved ones while such requests are processed and adjudicated. The Administration’s proposal allows them to apply for the waiver prior to leaving the country to begin the visa process.
Full text of the letter follows:
May 29, 2012
Sunday Aigbe, Chief
Regulatory Products Division
Office of the Executive Secretariat
U.S. Citizenship and Immigration Services
20 Massachusetts Ave. NW
Washington, D.C. 20529-2020
RE: DHS Docket No. USCIS-2012-0003
8 CFR Parts 103 and 212
Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relative
Dear Chief Aigbe:
We write in response to the proposed rule regarding “Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives.” We commend the Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) for creating this provisional waiver process which will promote family unity, increase transparency, and increase efficiencies in the immigration system. This proposed rule will reduce the amount of time that families are separated and decrease the amount of time spent in dangerous conditions abroad.
Under current law, spouses and children of U.S. citizens and lawful permanent residents may immigrate to the United States through our family-based immigration system; however, some of these individuals are temporarily barred from immigrating to the U.S. based on past immigration violations. In the interest of family unity, Congress created a waiver to allow the spouse, son, or daughter of a citizen or lawful permanent resident to immigrate to the U.S. if a refusal to admit the family member would result in extreme hardship to the U.S. citizen or resident. DHS’s current practice is to process such waivers only after a potential beneficiary has already left the United States and been found inadmissible by the State Department. The proposed rule simply allows family members of U.S. citizens to apply for a provisional waiver before departing the United States. This change will allow U.S. citizens and residents to stay with their families in the United States while awaiting a decision on their waiver application.
I. The rule should be expanded to include adult children of U.S. citizens and lawful permanent residents.
While we strongly support the creation of this provisional waiver for immediate relatives of U.S. citizens, we believe this process should be expanded to include the relatives of lawful permanent residents. In creating the waiver, Congress recognized the need for family reunification for both the relatives of citizens and residents, so we do not think the proposed rule should distinguish between the two groups. The plain language of the statute indicates that Congress intended the waiver to be available not only for immediate relatives of U.S. citizens, but also for unmarried adult children of U.S. citizens and spouses and children of residents. Therefore, we believe both groups should be eligible for this provisional waiver process. To ensure that the agency is able to efficiently process these applications, USCIS could limit eligibility for the provisional waiver process to preference relatives for whom an immigrant visa is currently available.
II. Individuals who can demonstrate extreme hardship to a lawful permanent resident spouse or parent should be eligible for the provisional waiver process.
The proposed rule does not permit immediate relatives to qualify for a waiver by demonstrating that a lawful permanent resident spouse or parent would suffer extreme hardship if the individual is not admitted to the United States. This is once more a question of congressional intent, and the intention of Congress could not be clearer. We agree with the comment in the proposed rule that prolonged separation caused by the current waiver process “can cause many U.S. citizens to experience extreme humanitarian and financial hardships.” This statement is no less true for lawful permanent resident spouses and parents who must currently endure similar prolonged separation and extreme hardship. Given that Congress has expressed clearly its intention to help such spouses and parents avoid extreme hardship, we believe USCIS should equally consider hardship imposed upon residents.
III. The extreme hardship standard should be expanded and clarified.
While this waiver process will allow more family members to apply for this waiver, it does not change eligibility for the waiver. USCIS should also take this opportunity to review and expand its regulations regarding the extreme hardship standard. In particular, USCIS should clearly state that separation from a U.S. citizen child clearly constitutes extreme hardship. Separation from a small child who relies on an individual for financial and emotional care and support is clearly an extreme hardship and should be recognized as such in the regulations. In addition, we urge DHS to consider establishing a rebuttable presumption that the extreme hardship requirement has been satisfied when a potential beneficiary and his or her close U.S. family members would be required to relocate to a location where State Department employees receive danger pay, if a waiver is not approved.
IV. While this proposed rule will help many family members who face extreme hardship, we believe several changes to the rule would further promote family unity while enhancing efficiency at USCIS:
- USCIS and the State Department should work together to minimize dangerous conditions for waiver applicants who travel abroad for consular processing. In order to promote the use of the new policy and encourage consistent application of the waiver authority, the National Visa Center could assign immigrant visa petitions and waiver applications to a designated consular post in a safe and convenient location. Relatives of U.S. citizens and residents who are applying for extreme hardship waivers should not face the serious hardship of living abroad in dangerous conditions. The creation of this provision waiver process will certainly help to reduce the waiting time abroad for consular processing. However, individuals with provisional waivers will still be required to travel abroad to process their waivers. Approximately 80% of hardship waivers are processed at the U.S. consulate in Ciudad Juárez, the sole location in Mexico for such processing. The State Department’s Travel Warning for Mexico describes Ciudad Juárez as warranting “special concern,” and recognizes that the city has one of the highest murder rates in the world. The U.S. Government currently awards danger pay to State Department employees serving there. 5 U.S.C. § 5928. Unfortunately, we are aware of several cases in which individuals applying for a waiver for his or her close U.S. family members were kidnapped, assaulted, and/or murdered while awaiting waiver adjudication abroad. One of those cases involved Jake Reyes-Neal, an American citizen who was murdered in Ciudad Juárez after he moved there with his infant son in order to wait with his wife for the processing of her waiver application. The State Department and USCIS should consider establishing safer locations for consular processing.
- Approved provisional waivers should carry a presumption of extreme hardship. An approved provisional waiver should give rise to a presumption of extreme hardship for related waiver applications instead of requiring an entirely new adjudication.
- USCIS should permit individuals who are currently in removal proceedings or who have been issued a notice to appear (NTA) to apply for and receive provisional waivers: As you know, DHS recently implemented a prosecutorial discretion initiative to improve our immigration enforcement efforts by focusing limited resources on high priority targets and administratively closing low priority cases. The proposed provisional waiver process seeks to advance the laudable goals of promoting family unity, alleviating extreme hardship, and encouraging legal immigration under provisions in existing law. These two initiatives should work in concert, but prohibiting persons whose cases have been administratively closed from seeking provisional waivers will needlessly undermine both efforts. The rule should allow individuals issued NTAs and in removal proceedings to apply for and be granted the provisional waiver.
- USCIS should permit concurrent filing of the provisional waiver with a form I-212 waiver for a prior removal order. There is already a stateside adjudication process in place for individuals who are inadmissible due to a prior removal order, and current adjudication policy directs that if the Form I-601 is approved, then the Form I-212 will also be approved. Under the proposed rules, applicants requiring both waivers would be ineligible for the provisional waiver process. These applicants should be able to apply for both concurrently. Non-concurrent applications are a waste of resources.
- USCIS should permit motions to reopen or motions to reconsider and more than one provisional waiver application. Currently, the proposed rule does not permit any appeal or motion to reopen or reconsider, and applicants may apply only once. Applicants are sometimes denied in error. Pro se applicants may not fully understand the level of detail required for a successful application. Unscrupulous actors may mislead individuals, leading to deficient applications. Allowing individuals to file a motion to reopen or reconsider is important to protect due process.
- USCIS should not limit requests for evidence (RFEs) solely to issues regarding extreme hardship and discretion. During adjudication, issues may arise that impact an applicant’s eligibility for a provisional waiver or require further explanation. USCIS should issue an RFE to obtain more information rather than force officers to deny an application based on a “reason to believe” the person may be inadmissible.
We very much appreciate the Department’s commitment to family unity and believe that this provisional waiver process will eliminate a serious bureaucratic hurdle that keeps families apart for months or even years. Families like Sgt. James Carbajal, his wife Gabriela, and their three year old son, who have been separated for the last three years underscore the importance of the provisional waiver process. Sgt. Carbajal is a U.S. service member from Colorado. Both he and his three year old son are U.S. citizens. Sgt. Carbal has endured prolonged separation from his family while his wife and their son wait in Morelos, Mexico for her hardship waiver to be processed. This forced time apart has had a considerable financial and emotional impact on the entire family, circumstances made all the more regrettable in that it involves one of the brave men serving our country. The proposed rule allows families like that of Sgt. Carbajal to use an avenue to reunification that exists under current law while enhancing efficiency at USCIS. Thank you very much for your consideration of our comments.