Mixed-status families

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January 10, 2012 | 11:15 AM | By

The proposed ‘hardship waiver’ change: How it would apply in real life

Photo by AFP/Getty Images

Mexican soldiers guard one of the entrances in July 2010 to the U.S. consulate in Ciudad Juarez, Mexico, where undocumented Mexican nationals who marry U.S. citizens are typically sent to apply for green cards. Under current rules, many get stuck there long-term.

A proposed administrative tweak announced last week by U.S. Citizenship and Immigration Services could encourage many families of mixed immigration status who have found it impossible to solve their immigration problems to finally come out of the shadows.

The proposal concerns a longstanding rule affecting the undocumented spouses and children of U.S. citizens, many of whom are unable to adjust their status in the United States. They are, however, allowed return to their native countries in order to apply for a green card through what’s referred to as consular processing, applying at U.S. consulates such as the one in Ciudad Juarez.

The catch is that once they leave, depending on how long they’ve been in the U.S. illegally, they can be barred from returning for up to a decade. If they can prove the absence will cause “extreme hardship” to a U.S. citizen spouse, a waiver may be obtained to let them return sooner. But the waivers aren’t easy to obtain and the processing time is lengthy, from six months to easily two years depending on the country. If the waiver is not granted, they can be stranded abroad long-term. The risk of indefinite separation is so great that many families don’t risk it.

The proposed change, published Friday in the Federal Register, would streamline the waiver process, allowing people to apply on U.S. soil. The change wouldn’t necessarily make these waivers easier to obtain, but at least those seeking visas abroad would know before they go that they can return within a reasonable time, which USCIS says would be no more than a few weeks.

If the change goes through, how would it apply in real life among mixed-status families? Immigration attorney David Leopold, former president of the American Immigration Lawyers Association, explains its practical applications and presents a case study in an informative Q&A.

M-A: Who would this proposed change help, and how?

Leopold: Under U.S. immigration law, a foreign national who remains in the U.S. unlawfully for more than 6 months, after entering illegally or overstaying a visa, is barred from readmission to the U.S. once he or she leaves. The law also does not generally permit noncitizens who have entered illegally from adjusting their status to lawful permanent residence (green card), even if they are married to a U.S. citizen.

This puts many would-be legal immigrants into a Catch-22: The noncitizen may be eligible for a green card because of the marriage but, to apply for it, he or she must leave the U.S. to appear at the U.S. embassy in his or her home country. Once the noncitizen departs the U.S., he or she is then barred from returning for up to 10 years unless he or she can obtain a family unity waiver, which requires a showing that the applicant’s U.S. citizen spouse will suffer extreme hardship.

Currently, applicants must apply for the family unity waiver abroad. The process can take months, even years. In the meantime, the family is separated and the applicant may be stuck waiting in a dangerous place, such as Ciudad Juarez, Mexico. The proposed procedural tweak will allow the applicant to apply for the waiver in the U.S. Once the waiver is granted, the applicant may then proceed abroad, apply for their immigrant visa, and return quickly to the U.S. and their family as a legal immigrant. This proposed rule does not change the law in any way. But by allowing for stateside waiver processing it protects American families and promotes legal immigration.

The processing change would apply to spouses and children of U.S. citizens. Practically speaking, though, it applies mainly to spouses because children don’t accrue unlawful presence until they each the age of 18. However, the law defines a child as an unmarried person under 21. Therefore, there will be children who will need to apply for the family unity waiver abroad, just not as many.

M-A: What is the criteria for “extreme hardship? How difficult is it to obtain the waiver, and realistically, how long does it take? 

Leopold: There are no set criteria for extreme hardship. It is a question of circumstances which involves a variety of factors, including economic hardship, emotional distress, physical hardship, etc.

For example, extreme hardship may be present where the U.S. citizen spouse suffers from a debilitating disease which can only be treated in the U.S., or the foreign spouse is the only caretaker or source of financial support. Each case is evaluated on its own facts. The law limits the showing of hardship in these circumstances to the spouse or parent of the immigrant; hardship to U.S. citizen children is not included in the law.

And there are no guarantees. Unless the applicant proves extreme hardship, which is something more than the pain of separation, the waiver will be denied.

In Mexico (where the majority of these applications are filed), the waiver process itself can take as long as 18 months to process.

M-A: So let’s look at a case study: U.S. citizen wife, Mexican citizen husband, two U.S. citizen kids. The husband has been here illegally more than a year and is subject to the readmission penalty. How would it work under existing rules, and how would it work under the proposed rules?

Leopold: Since he entered illegally, the husband cannot apply for his green card in the U.S., even though he is married to a U.S. citizen and the couple has two U.S. citizen children.

To apply for his immigrant visa, the husband will have to go to the U.S. consulate in Ciudad Juarez, Mexico, which is considered by many to be the most dangerous city in the world not in a declared war zone. Once he departs the U.S.- he will be subject to a 10 year bar because he has been in the U.S. unlawfully for more than a year.

To get his immigrant visa, he will have to apply for a family unity waiver and show his U.S. citizen wife will suffer extreme hardship if he cannot return to his family in the U.S.  As stated, proving hardship will depend on his U.S. citizen wife’s circumstances.

Some of the factors that may apply are the state of her physical and mental health, her profession, the family’s particular economic circumstances, her family ties in the U.S., country conditions in Mexico, cultural considerations, and her Spanish language ability. Remember, hardship to the children doesn’t legally matter – but to the extent that hardship to the children may cause their U.S. citizen mother anxiety and pain or other hardship, it may be relevant.

The waiver process will likely take more than a year, during which time the husband will remain in Mexico, away from his family.

Under the proposed rule change, the husband will be able to apply for the family unity waiver in the U.S., before he departs to apply for his immigrant visa in Mexico. Therefore, once he gets to the U.S. consulate in Ciudad Juarez, his waiver will already have been granted, and he will be able to return to the U.S. (and his family) as a lawful permanent resident in a relatively short period of time.

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FILED UNDER: Extreme hardship, Hardship waiver, Mixed immigration status, Mixed status, Mixed-status families, U.S. Citizenship and Immigration Services, USCIS
January 6, 2012 | 2:19 PM | By

The proposed rule change for mixed-status families: What it does, doesn’t do

Screen shot from uscis.gov

This morning, the Obama administration announced a proposed change to the process for granting green cards to the undocumented spouses and parents of U.S. citizens, one intended to ease the long-term family separation endured by many as they wait abroad to re-enter legally.

It’s a big deal. Then again, at least in terms of scale, not quite as big as it might seem.

The proposal, posted this morning in the Federal Register, affects people who are applying for a waiver to the three- or ten-year re-entry bar for those who have been living in the U.S. illegally, but wish to adjust their status through immediate family. The existing rule – one that won’t change – is that most undocumented spouses and children of U.S. citizens who apply for a green card must return to their native countries to be processed, allowing them to then return legally.

But there’s a major catch. Once they leave, depending on how long they’ve been in the U.S. illegally, they can be barred from returning for up to a decade. The solution for some is to prove that the absence will cause “extreme hardship” to a citizen spouse. If they can, a waiver can be obtained to let them return sooner. But these waivers are difficult to obtain, making for long waits. If it’s not granted, the person waiting abroad can be stranded there for years, separated from loved ones and potentially draining the family’s resources. Even those who do eventually obtain waivers typically find themselves stuck abroad long-term, as they take months to process.

The proposed rule change would allow those seeking a hardship waiver to do so on U.S. soil, meaning they would know before they leave the country if they are approved. The idea would be, then, that people travel abroad to get their visas with a provisional waiver in hand, allowing them to return unimpeded within a few weeks and sparing them the prospect of getting stuck.

Those who do get stuck and can’t get a waiver to return are in for a long wait: Current immigration law punishes people who have been living in the U.S. illegally for at least six months with a readmission ban of three years. If they’ve been here illegally more than a year, they can’t come back legally for a decade.

Here’s what the proposed change will not do: “We do not anticipate that this will impact millions of people,” U.S. Citizenship and Immigration Services director Alejandro Mayorkas said today in a telephone news conference, and he’s right. The proposal would not amend existing laws, nor make it easier to obtain a hardship waiver, granted only to about 17,000 people last year.

Obtaining a hardship waiver is no easy feat. First, the hardship must only be to a U.S. citizen spouse or parent, and U.S. citizen children don’t factor in. Second, the simple pain of separation is not considered hardship enough. The family must prove there is extreme economic, physical, psychological or other hardship to the citizen relative. And if foreign family members are inadmissible to the U.S. because of a criminal conviction, they can’t qualify.

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FILED UNDER: Hardship waiver, Inadmissibility waiver, Mixed immigration status, Mixed status, Mixed-status families, U.S. Citizenship and Immigration Services, USCIS
November 28, 2011 | 10:21 AM | By

Why it’s so difficult to legalize through marriage – as explained by cuddly creatures (Video)

Thanks to immigration attorney Jonathan Montag for supplying this bizarre little video that explains the immigration dilemma faced by mixed-status couples – in this case a U.S. citizen hoping to legalize his wife – via cuddly creatures with oddly robotic voices.

Montag posted the video in the comments section beneath a Q&A from Friday. In that post, former American Immigration Lawyers Association president David Leopold debunked the myth that having a U.S. citizen spouse (or immediate relatives, even) equals a path to legal status.

Especially for many people who entered the U.S. illegally, it’s next to impossible to adjust one’s status, even through marriage. The Q&A followed a series of first-person stories from people in families with mixed immigration status.

If the cuddly U.S. citizen bear telling his story in the video appears somewhat clueless about the rules, he’s not alone. The rules are vague for most of the general public and myths abound, especially when it concerns marriage to a citizen or having U.S.-born children.

The video was made using Xtranormal Movie Maker, a program that allows users to produce videos using a choice of animated characters. Check out this one from August in which the same adorable critters – one with a British accent this time – discuss the Obama administration’s new deportation policy.

FILED UNDER: Politics/Justice, AILA, David Leopold, Jonathan Montag, Mixed immigration status, Mixed status, Mixed-status families, Xtranormal
November 25, 2011 | 12:24 PM | By

Why it’s so hard to obtain legal status, even through marriage and family

Photo by scribbletaylor/Flickr (Creative Commons)

A recent series of posts explored the immigration limbo lived by families of mixed status, families in which some members are U.S. citizens and/or legal residents while others remain undocumented, unable to adjust their immigration status in spite of family and marriage ties to the United States.

Mixed-status families are surprisingly common. In 2009, the Pew Hispanic Center estimated there were 8.8 million people living in families of mixed immigration status in the United States. This makes for a conservative estimate, as Pew’s definition was limited to families with unauthorized immigrants and their U.S. citizen children. Even more common are mixed-status extended families, one example being the Kenyan-born family of President Obama, whose undocumented half-uncle was arrested in August, and whose aunt was up for deportation until being granted asylum.

The Multi-American series on mixed-status families featured the first-person stories of U.S. citizens and legal residents who are the spouses, children and siblings of undocumented immigrants. Many had tried to adjust their status and failed. One U.S. citizen woman whose husband had been unable to adjust, and now faces deportation, wrote: “People who don’t have undocumented family members don’t believe me when I tell them he can’t get papers.”

It’s commonly believed that marriage to a U.S. citizen is an immigration cure-all, as is having U.S.-born children. Not so. In fact, for people who entered illegally, current laws make it next to impossible to obtain legal status. Legal expert David Wolfe Leopold, an immigration attorney and former president of the American Immigration Lawyers Association, explains why.

M-A: Why is it so difficult to adjust immigration status for those who lack legal status, even through family or marriage?

Leopold: The law limits adjustment to non-immigrants who have maintained status, not worked without authorization, etc. There are few exceptions to this general rule.

In the family based context, a person may adjust if they were lawfully admitted or paroled into the U.S., and they are married to a U.S. citizen or the parent of a U.S. citizen who has reached the age of 21. In the employer sponsorship context, a person may adjust if they were lawfully admitted (not paroled) into the U.S. and their failure to maintain status has been for no longer than six months. Asylees and refugees may adjust regardless of lawful admission.

M-A: What if someone entered illegally without a visa, as opposed to someone who entered lawfully and overstayed? Is it possible to obtain legal status?

Leopold: For most people, no. There are two exceptions to this, commonly known as 245(i): 1) if the person could have adjusted by an immigration process started before January 18, 1998, or; 2) if the person could have adjusted based on an immigration process started before April 30, 2001 and they can prove they were present in the U.S on December 21, 2000.

Practically speaking, this means that some petition or labor certification process must have been filed on their behalf or on behalf of their parent or spouse before these dates. The rules are pretty liberal as to who can benefit. But, as you might imagine, the pool of people who qualify diminishes as the years and days go by.

M-A: Is there a way for people who entered without a visa to adjust status through marriage?

Leopold: No. The law does not permit adjustment even if the green card is based on marriage to a U.S. citizen and there is extreme hardship to the family. If a person entered without an inspection and doesn’t qualify for 245(i) exceptions, they must leave the U.S. in order to apply for their immigrant visa.

M-A: What happens when people are told to go back to their native country, such as to Ciudad Juarez in Mexico to process paperwork at the consulate there? What are the penalties?

Leopold: Anyone who has been in the U.S. for more than six months after entering illegally, or overstaying their authorized period of stay, faces a three or 10 year bar to readmission once they leave. If a person overstays for six months, they will be barred for three years; if they overstay for one year or more, they will be barred for 10 years.

If they reenter illegally after having been removed or after having been in the U.S. unlawfully for more than a year, they will be barred permanently.

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FILED UNDER: Politics/Justice, AILA, Mixed immigration status, Mixed status, Mixed-status families, Obama's uncle
November 3, 2011 | 3:01 PM | By

Life in a mixed-status family: ‘Paperwork takes years’

Photo by sparkypics/Flickr (Creative Commons)

A recent series provided a glimpse into what it’s like to live in a family of mixed immigration status, a family in which some members are U.S. citizens or legal residents while others – a spouse, a parent, a sibling, an adult child – remain undocumented.

Several people recently submitted their personal stories via KPCC’s Public Insight Network, which solicits input from the public on specific topics, and five of these were featured in a weeklong series of posts.

But the stories have kept coming and are worth sharing. More recently, those contributing them have delved into other aspects of the immigration process, including how difficult it is to obtain legal status or come to the U.S. legally in the first place.

Among these is Jill, a U.S.-born Las Vegas resident whose mixed-status story has a happy ending. Her formerly undocumented husband, brought here from Mexico when he was nine years old, became a legal U.S. resident in 2009. Herself the child of a legal resident from Canada, she no longer worries that her spouse could be deported at any time. But getting to that point was a frustrating experience, Jill writes, and other family members remain in immigration limbo:

When we got married, my husband was illegal. After we had our first son and political rumblings were arising about what to do about illegal immigrants, I put in the paperwork petitioning him for his legal residency. He was able to get his green card fairly quickly, however, my sister and brother-in-law are in a similar situation and have been waiting years for paperwork to come through so that my brother in law can get papers.

It’s been very hard for them, as they have kids too. Our cousin also lives with us and has a visa, but then found out her visa could not be renewed. She worried because there was no work for her back in Mexico and the little that she could make here she was sending back to her family there. She now has to decide whether to stay with us, even though her visa is expired, or to go back home with her family.

Immigration paperwork for just about anything is long, tedious, and frustrating. I had a permanent resident application returned to me because I had put the checks for the fees on top instead of with each individual form. I had a passport application returned because the smile in the picture showed a tiny bit of teeth. With few exceptions, paperwork takes years and the fees are very expensive.

We worry that our relatives who are illegal could be deported (one of them was), and those that are illegal worry about losing their jobs or getting stopped by the police. We have forbidden our brother in law from travelling to Arizona and cancelled a weekend trip to the Grand Canyon.

(In response to, “What do you wish others knew about families whose members have a mix of citizenship, legal residency or undocumented/lapsed immigration status?”)

I wish they understood that the great majority of them are hardworking people who love their families, and would do anything for their children to have a better life. I wish they understood that there is no such thing as an “anchor baby.” A mother or father can be deported at any time whether or not they have children who are citizens, and children can’t apply for papers for their parents until they are 21 and have a stable job.

Continue reading →

FILED UNDER: Culture/Identity, Politics/Justice, Mixed immigration status, Mixed status, Mixed-status families, Obama's uncle, Pew Hispanic Center
October 28, 2011 | 11:18 AM | By

Five personal stories of life in mixed-status families

Photo by nunodantas/Flickr (Creative Commons)

What is it like to live in a family in which you’re a U.S. citizen, but your spouse, one of your parents, a sibling, an uncle or aunt, even one of your children is undocumented?

During the past week, Multi-American has presented a series of first-person stories from people in families like these. Families of mixed immigration status are surprisingly common. In 2009, the Pew Hispanic Center estimated there were 8.8 million people living in mixed-status families in the United States.

This makes for a conservative estimate, as Pew’s definition was limited to families with unauthorized immigrants and their U.S. citizen children. Even more common are mixed-status extended families, one example being the Kenyan-born family of President Obama, whose undocumented half-uncle was arrested in August, and whose aunt was up for deportation until being granted asylum.

Why are mixed-status families so prevalent in the U.S? The demand for family reunification through legal channels is much larger than the number of available immigrant visas, for one thing. And for those who are in the U.S. illegally, it is much more difficult to adjust one’s immigration status than commonly thought, even through marriage. Those who entered with visas and overstayed stand a better chance, but tighter laws over the years have made it impossible for many people who entered without visas to ever adjust their status.

So what is life like for these families? As those who contributed to the series have explained, things as simple as taking a trip together are fraught with anxiety, or just not done. Those here legally don’t add their spouses to insurance plans or add their names to loan documents. “It’s as if she doesn’t exist,” one person wrote. Here are some highlights from the series.

People who don’t have undocumented family members don’t believe me when I tell them he can’t get papers. They don’t believe me when I tell them my brother-in-law can not enter this country legally to pick crops. They always tell me I’m mistaken. Or they’re callous and don’t understand how easy it was for their ancestors to enter, and how difficult it is now.

  • A man who works with elementary school students in Portland, Oregon public schools writes about how media images and public attitudes affect children in mixed-status households:

Many of my students have a lot of sad issues with their cultural identity, stemming from the kind of hateful things they hear all the time about them and their families. The undocumented population in Portland is pretty big, so there’s not as much fear or secrecy as there are kids growing up having to listen to their neighbors and the media speak about their parents as if they were sub-human. That causes lasting damage to kids, and it sucks.

  • A woman who was born to Mexican immigrants in Kansas City, Missouri writes about life with her domestic partner, who has tried to adjust her status but remains undocumented:

It hurts to keep so many secrets. I can’t put her on an application for a loan and I have to say I’m the only person in the household. I can’t put her on my health or auto insurance and again – it’s as if she doesn’t exist.

Continue reading →

FILED UNDER: Culture/Identity, Politics/Justice, Mixed immigration status, Mixed status, Mixed-status families, Obama's uncle, Public Insight Network
October 26, 2011 | 12:45 PM | By

Life in a mixed-status family: ‘People…don’t believe me when I tell them he can’t get papers’

Photo by K2D2vaca/Flickr (Creative Commons)

This latest in a series of first-person stories from people in families of mixed immigration status comes from Alison Gamez, a U.S. citizen in Arizona whose husband is undocumented. Now in deportation proceedings, he was unable to adjust his status, even through marriage.

It’s a common misperception that this is easily done. The reality is that while those who entered with temporary visas and overstayed illegally stand a decent chance of legalizing through marriage, tighter immigration laws have made it nearly impossible for those who entered without visas to adjust their status, even when they marry a citizen.

Gamez’s story joins several that Multi-American has published in the past week from members of mixed-status families, including stories from the U.S. citizen daughter of undocumented parents, the legal-resident brother of undocumented siblings, and a woman born in Kansas City whose domestic partner is undocumented.

Yesterday’s post shared a different perspective from a Portland man who works with public school students from immigrant families, many of them living in mixed-status households.

Gamez and her husband, who is soon due to be repatriated to Mexico, live in Surprise, Arizona, outside Phoenix. Here’s what she shared via KPCC’s  Public Insight Network, which has been been collecting the stories of people living in or familiar with these families.

My husband entered the country without papers over 10 years ago. We started living together about 7 years ago, and that is when I discovered that the laws had changed, and my husband could no longer become legal forever. So we did not marry at that time because we both had first bad marriages.

Then I heard on the radio that if we married, his kids (living with my husband’s mom in Mexico – his wife took off with another man) could become legal and remain legal. So we got married. After that, he was stopped by Border Patrol on a highway (the 303), and we got trapped in the immigration system. He is set for deportation in January 2014, but allowed to live here legally until then.

People who don’t have undocumented family members don’t believe me when I tell them he can’t get papers. They don’t believe me when I tell them my brother-in-law can not enter this country legally to pick crops. They always tell me I’m mistaken. Or they’re callous and don’t understand how easy it was for their ancestors to enter, and how difficult it is now.

(In response to “What do you wish others knew about families whose members have a mix of citizenship, legal residency or undocumented/lapsed immigration status?”) That we want our rights as U.S. citizens to be respected by allowing us to live with the people we love, just like anyone else. That the laws were quietly changed in 1996 to take place in 2001 and since then it’s been so ridiculously unfair.

I am willing to pay whatever to have my husband here. I love him. He works in construction. He’s a good man. He makes me happy. I just want my good marriage to be able to stay together in the country I was born (in).

(In response to “What steps, if any, have members of your family taken to correct visa or immigration problems?”) We submitted papers. They gave him until January, 2014 to see if laws will change, then he is expected to leave, and no one cares what happens to me.

Mixed-status families are surprisingly common in the United States, where the demand for family reunification is high and the number of immigrant visas available low. It’s not uncommon to find families composed of U.S. citizens and/or legal residents and undocumented immigrants, sometimes under one roof. As several of those who have submitted stories so far have attested, things other families take for granted are not done easily in these families, if at all.

Do you have a story to share? Feel free to post comments below, or view the Public Insight Network questions here.

FILED UNDER: Culture/Identity, Politics/Justice, Mixed immigration status, Mixed status, Mixed-status families, Obama's uncle
October 25, 2011 | 11:08 AM | By

Life in a mixed-status family: ‘The media speak about their parents as if they were sub-human’

Photo by freeformkatia/Flickr (Creative Commons)

A series of posts that began last week has related the personal stories of people in families of mixed immigration status, families composed of a blend of U.S. citizens and/or legal residents and undocumented immigrants, sometimes living under one roof. It’s a common phenomenon in the United States that also tends to stay secret, seldom disclosed beyond the family.

So far, the people who have sent their stories in to KPCC’s Public Insight Network have been members of mixed-status families, among them a young U.S. citizen woman whose parents have never been able to legalize their immigration status, the legal-resident brother of undocumented siblings who came here as minors, and a woman born in Kansas City whose partner is undocumented. All shared a common thread: What other families take for granted – taking a trip, for instance – isn’t something that mixed-status families do easily, if at all.

Today’s post shares a different perspective. It was submitted by Andrew Baron, who works with immigrant and refugee children in grades 5 through 8 in the Portland, Oregon public schools as part of a non-profit school-based program. Many of the students he deals with live in mixed-status Mexican immigrant households, with the older children born in Mexico and younger children born in the U.S. Many of their parents are undocumented. Baron writes about the kids:

Many of my students have a lot of sad issues with their cultural identity, stemming from the kind of hateful things they hear all the time about them and their families. The undocumented population in Portland is pretty big, so there’s not as much fear or secrecy as there are kids growing up having to listen to their neighbors and the media speak about their parents as if they were sub-human. That causes lasting damage to kids, and it sucks.

I’ve found it very difficult to be in a position where you actually have to try explaining to some people the definition of a human being. For many people in our culture, the lack of legal residency has become a great excuse to attack people who are vulnerable. Sadly, I don’t think it comes from ignorance. When you ask these people who they imagine picks and slaughters the food they eat, they readily concede that it’s mostly done by the very people they categorize as being such a drain on society. I think it comes from a pernicious attitude that’s taken hold in the U.S. whereby many people take pride in denying reality and denigrating people less powerful than they are.

As I type, the father of one of my students is sitting in a cell in Tacoma, awaiting deportation after being stopped for a minor traffic violation. Thus far I’ve written a character letter for him, explaining what a good father and community member he is. I tried to attend his initial hearing, but was told by his wife the judge won’t let anyone attend.

I’ve heard some interesting interviews with farmers and other employers who can’t get any Americans to do the difficult work done by undocumented immigrants. You should probably talk more with them. Also, talk to undocumented teenagers who’ve been led to believe that if they just study hard and follow the rules they’ll be rewarded in this country. That has turned out to be a colossal lie, and they’re the first to suffer for it.

Do you have a story to share, as a member of a mixed-status family or someone who is familiar with one? Feel free to post comments below, or view the Public Insight Network questions here.

 

FILED UNDER: Culture/Identity, Politics/Justice, Mixed immigration status, Mixed status, Mixed-status families, Obama's uncle