Immigration: Family Unity Waiver Hardship Story

An immigration attorney with over 30 years of experience provides insights into the old Hardship Waiver process.

On January 3, 2013 the US Citizenship and Immigration Services published the final rule for the new Family Unity Waiver. 

Undocumented persons who entered the US without any visa at all (by crossing the border from Mexico into the US, for example) are not eligible to have their personal interviews for their “green cards” inside the U.S., even if they marry a US citizen.  They are required to return to the US Consulate in their home country, for their personal interview and to hand in their Waiver packets in person at the US Consulate.  Because of another clause in our Immigration laws, they are barred from returning to the US for a period of 3 to 10 years, as a punishment for having been in the US unlawfully.  The Waiver that they would hand in at the US Consulate abroad was to allow them re-entry to the US, without having to wait outside for up to 10 years.  This harsh provision has caused severe hardship to US families. 

The following is inspired by true stories under the old Immigration Waiver process.  Names and places have been changed. 

A US citizen-wife, Mary, married Edgar from Ecuador.  Neither Mary nor Edgar had ever been married before. Edgar had one 6 year old US citizen son, Harry, who was mentally challenged. When Mary and Edgar married, Harry came to live with them.  Mary and Edgar had 3 more children together.

Mary suffered from worsening diabetes complications, as a result of her pregnancies, including loss of her eyesight. Mary relied on Edgar more and more to handle the shopping and cooking for the family, and the household repairs.  He played with the children on weekends when he wasn’t working, and their family was very happy together.

But Edgar was not in legal status.

Edgar did not enter the US legally with a visa. Edgar had crossed the border on foot from Mexico into Arizona many years ago.  Mary didn’t know about any of this when she fell in love with Edgar.  They met, dated, and fell in love, and as time passed, Edgar shared his story with her. Mary wanted to sponsor Edgar as her husband. They didn’t have a lot of money and decided to fill out the papers for
Immigration on their own and file them with the US Citizenship and
Naturalization Service. The first set of papers was approved in the US. but they learned that Edgar had to travel back to the US Consulate in Ecuador for his personal interview for his permanent resident status, or “green card”. 

Because he did not enter the US with a visa, Edgar was not eligible to have his personal interview for his green card inside the US. Mary and Edgar followed the rules of Immigration, and Edgar traveled down to our US Consulate in Ecuador for his consular processing interview.

When Mary finally contacted me, Edgar had been waiting for over 2 years in Ecuador.

Mary had to quit her job because she couldn't afford child care anymore, she had to sell their house because she couldn’t afford the mortgage or upkeep without her job, she lost her medical insurance which was covered by her job, she could no longer drive due to her failing eyesight, and she and the children moved in with her parents.

Mary continued to care for Edgar's mentally challenged son, Harry, who desperately missed his father and didn't understand why his father had abandoned him.

My office drafted a Waiver application for Edgar, sent the Wavier packet to him and explained the process for filing the Waiver application at the US Consulate.  Edgar went to file the Waiver at the US Consulate, which was very far from his home town in Ecuador.

The U.S. doesn’t send all US citizens down to our consulates to work. Our US Consulates hire foreign nationals to work in some positions at our consulates overseas.  These foreign nationals are local Ecuadorians. When Edgar went to file his Waiver packet, he was told by a foreign national who was employed at our US Consulate that he would never be returning to the US. The foreign national was not authorized to say that to Edgar, did not review his Waiver packet and had no ability to make any decisions regarding Waiver packets or any other US immigration matters.

In fact, Edgar had an excellent Waiver packet based on severe and exceptionally unusual hardship to his US citizen-wife, Mary, who was suffering greatly back in the US.

But Edgar believed the foreign national who took his Waiver packet for filing because Edgar thought this was a person of authority. 

Edgar went into a deep despair, left the US Consulate, and committed suicide.

This story is an example of the old process under which families were separated for extended periods of time, while they waited for their Waivers to be processed overseas. Many families received conflicting information from one US Consulate to
another.  The US Consulate in Moscow might decide a Waiver application packet very differently than a US Consulate in Lima, Peru or Kingston, Jamaica.

This new process finally allows us to file the Waivers inside the US, and obtain approvals, before the immigrant ever leaves the US.  Although each Waiver has a different set of facts, there can now be universal standards that can be applied to each decision.  The Waiver will be pre-approved inside the US.

This means that when the immigrant leaves the US for the consular processing interview, he could be returning in just a few short weeks!

Next week:  Criteria for getting a new Family Unity Waiver approved. 

This post is contributed by a community member. The views expressed in this blog are those of the author and do not necessarily reflect those of Patch Media Corporation. Everyone is welcome to submit a post to Patch. If you'd like to post a blog, go here to get started.


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