EXTREME HARDSHIP WAIVER RELIEF MAY BE ON THE HORIZON, BUT ISN’T HERE YET.

By Ken C. Gauvey, Esq.

United States Citizenship and Immigration Services (USCIS) has announced a new proposed rule that may make it easier for some undocumented workers to remain in the U.S. The proposed change, while appearing relatively benign, has significant consequences to those in the U.S. without immigration status. Simply put, the change would permit undocumented individuals in the U.S. the opportunity to apply for a hardship waiver without having to leave the country. Unfortunately, the announcement of the proposed change has led to a increase in the potential for immigration fraud as some individuals have apparently been attempting to sell this proposed change as actual law before it is adopted by USCIS. Therefore, it is important that employers and employees have all the facts before attempting to act to obtain potential immigration benefits.

Employers have been put in a difficult situation by the plethora of factually unsupportable statements regarding immigration. Contrary to the anti-immigration rhetoric espoused in the media and on television, individuals who cross into the U.S. illegally have little to no options for staying in the U.S. Getting married to a U.S. citizen or having a U.S. citizen child provides no immigration benefits to an undocumented individual who entered the U.S. without being inspected at the border. Employment-based sponsorship of the undocumented individual is also not an option. Therefore, employers who may have a fantastic, dedicated employee, often find themselves in a no-win situation once the employee’s status becomes known. The employer, by law, is required to terminate an employee who they know does not have authorization to work in the U.S. However, by doing so, the employer loses an important employee.

Worse yet, if the employee is ever caught with unauthorized time in the U.S. the employee faces a 3- or 10-year bar from returning to the U.S. lawfully. Generally, the only way around this bar is an application for a hardship waiver. Individuals may be able to waive the bar to admission to the U.S. if they can show that their absence from the U.S. would result in severe and unusual hardship to a U.S. citizen. Currently, children and spouses of U.S. citizens who want to seek this waiver have to leave the U.S. to process it. So, in order to apply for the waiver, the individual first must subject themselves to the bar by leaving the country and spend a considerable amount of time outside the U.S. while the waiver is processed.

The proposed regulation would eliminate the need to leave the U.S. in order to apply for the waiver. Therefore, individuals could apply for the waiver while in the U.S. and wait in the U.S. while it is processed. The individual would still have to leave the U.S. to obtain the final approval of the waiver at the consulate, however, they could wait in the U.S. for provisional approval before having to leave. The purpose of this change is to reduce the amount of time families are separated while waiting for the waiver approval.

Undocumented individuals will still have to meet all the criteria for the extreme hardship waiver. To obtain a provisional approval the undocumented individual must be the spouse or child of a U.S. citizen (1) who is seeking lawful permanent residence through an immigration visa, (2) who is found inadmissible based on unlawful presence in the United States for more than 180 days, and (3) who meet the existing extreme hardship standard.

Ken Gauvey is an associate at Offit Kurman and part of Offit Kurman’s Immigration Group. If you have any questions regarding the content of this article, or any other immigration issue, please contact Ken at 443.738.1559 or kgauvey@offitkurman.com.