The Modern American Family: A Change in Immigration Law

There is a proposed change to U.S. immigration law that may have a very large effect on modern American families. The proposed change would allow an undocumented alien that entered the U.S. illegally to become a resident without leaving the country, if he is married to a citizen. Currently, if an undocumented alien marries an American citizen, he is required to return to his country of origin before he can become a resident of the U.S.

This is a major issue because by returning to his country, it can trigger the Unlawful Presence Bar, which prohibits an alien from rejoining his American family for ten years. The only way to avoid the ten year waiting period is to obtain a waiver, and to do so the alien must show that his absence will cause extreme hardship to his American wife or parents, and it may take a long time to process the application.

The government announced the proposed change to the immigration law this January, and the period for public comment on the proposed law expired on June 1. Now, it is up to the federal government to decide exactly how the new law will work.

Under the current law, a family with a non-citizen spouse has two options: 1) the entire family can go back to the country of origin, and must live abroad while they wait to receive a waiver or 2) the non-citizen can go back to his or her country of origin alone to wait for a waiver, and the family must live without a spouse. Obviously, both options cause major disruption to the family and may even put the entire family at risk of death or violence, depending on where the family must go.

The American Immigration Lawyer’s Association (AILA) tracks instances where Americans and their spouses have been injured or murdered while waiting for a waiver. AILA reported the murder of American citizen, Jake Reyes-Neal, in Juarez, Mexico on March 30, 2011. Mr. Reyes-Neal was in Mexico with his wife, who is a Mexican national, waiting for her waiver to be processed. The couple had been waiting in Mexico for nine months when Mr. Reyes-Neal was murdered. Eventually the waiver was granted, and now Mr. Reyes-Neal’s widow is raising their American son in Colorado.

Some families cannot relocate abroad while the waiver is pending. Requiring a spouse to be outside the U.S. for months is an excruciating decision for many families. For example, a young woman who I will refer to as Jessica for purposes of the article, recently married a disabled American citizen. The young couple planned to honeymoon abroad, but when Jessica asked her parents for her passport to finalize their travel plans, she was told that she is not a citizen of the U.S. Jessica’s family brought her to this country as a very small child and she believed that she was a citizen of the U.S. her entire life. Jessica is actually a citizen of Mexico.

Jessica and her husband sought legal advice as to what options are available to legalize Jessica’s immigration status in the U.S. Because Jessica’s family brought her to the U.S. without legal documents, Jessica is required to return to Mexico to apply for her residence in the U.S. Her return to Mexico will trigger the Unlawful Presence Bar and she must apply for a waiver. The waiver may take many months to be decided.

Jessica is only twenty years old and has not been to Mexico since she was a very small child. She does not read or write in Spanish and her new husband does not understand any Spanish. This young family’s options are very limited. Jessica could remain in the U.S. without immigration status, or brave the uncertainty of Mexico and hope that her waiver is approved.

The proposed law could help Jessica because she could apply for the waiver while still residing in the U.S. However, she would still be required to show that her absence would cause extreme hardship to her American husband.

While the proposed law is a step in the right direction toward keeping American families together, critics have many well-founded arguments. First, the proposed law only applies to spouses of U.S. citizens, which is much narrower than the current waiver. The current waiver system applies to spouses married to citizens as well as lawful residents of the U.S. An individual could live in the U.S. his entire life as a lawful resident without choosing to become a citizen. In addition, the proposed law does not allow undocumented spouses that are already in the process of removal (deportation) to apply for the waiver.

Some immigration attorneys argue that the new law creates a catch-22; you must show extreme hardship to obtain the waiver, but it will be more difficult to show extreme hardship if the undocumented spouse is still living with his family in the U.S. Therefore, it is possible that only a few of the strongest cases with the most obvious extreme hardship will be granted from within the U.S.

In the end, the proposed law is exactly that: a proposal. No one knows exactly what the new law will eventually look like because the government has not yet finalized it. Nevertheless, the proposed changes are an exciting development in the nation’s immigration laws and could provide a much needed avenue for American families to obtain lawful status for their loved ones.

This article was written by Beth Padilla of Van Der Jagt Law Firm. To set up an immigration related appointment, please call 720-234-1304 (English and Spanish line).