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Administration Expands and Improves Process to Fight 10-Year Ban From U.S.

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Carmen Cornejo
Written by Carmen Cornejo

The Obama administration has been using its power to make small but important administrative changes to the immigration process that may bring relief to some undocumented families. The most recent expression of this is the change announced July 29, 2016, called Expansion of Provisional Unlawful Presence Waivers of Inadmissibility

Under this expansion, certain undocumented, unmarried children (under age 21) of legal residents or citizens, as well as spouses of legal permanent residents or citizens, can apply for a provisional waiver to adjust their immigration status without staying outside the U.S. for years. The form to file is I-601. 

Many undocumented immigrants who sought to apply for a visa in their country of origin to regularize their status and exited the country were penalized for 10 years for initially entering the U.S. illegally.

This damaging 10-year exile was a catch-22: They could not fix their situation inside the U.S., and when they exited to try to do things the “right way” by asking permission, they were automatically penalized for 10 years. This was especially difficult for families.

A few individuals were exempt from such a penalty, and only those who demonstrated “extreme hardship” were re-admitted without the 10-year ban. The threshold definition of “extreme hardship” was pretty high, like having a spouse suffering from a brain tumor who could not take care of the children. As a result, many undocumented immigrants with a chance to fix their situation through a family member chose to stay in the country and continued to be undocumented. Well, no more.

Under the new rule, people with a chance of regularization (individuals under age 21 who are children of legal residents or citizens, and spouses of legal residents or citizens) can ask for a waiver – a pardon – for their illegal entry into the U.S. so they do not trigger the 10-year ban for exiting the country. To qualify for the waiver, the applicants must prove their family members with legal status would experience “extreme hardship” if they were separated for a long period.

“The rule is intended to encourage eligible individuals to complete the immigrant visa process, promote family unity, and improve administrative efficiency,” according to the Office of the Federal Register.

The rule a goes into effect on Aug. 29, 2016. In the following weeks, USCIS will be updating its Policy Manual to provide guidance on how USCIS will determine “extreme hardship”.

Consult an immigration lawyer to make sure you can qualify for the process and to outline the next steps. Here is Lacey and Larkin Frontera Fund’s guide to choosing a good immigration lawyer.