If the media is to be believed, then after years of waiting, repeated disappointments and continuous frustration, Congress has finally got its act together: immigration reform is about to happen!
I wish.
For all the media attention on immigration reform, there's remarkably little detail. There's talk about more visas, but nobody has offered any numbers. There's talk about principles such as "go to the back of the line" with no explanation of what that means. Yet these are two points that are central to any immigration reform that seeks to solve the current problem of 10-12 million people living illegally in the U.S. and to prevent the same situation again in 15-20 years time.
There's also evidence of a significant difference of opinion about whether those who are here illegally should ever have the right of U.S. citizenship or even a permanent green card. My great fear is that in return for additional visas (which won't be in volumes sufficient to solve the current problem or prevent its recurrence), Democrats and moderate Republicans will agree that those unlawfully present may get only conditional residence (e.g. work authorization but no green card).
So what does that mean for people who are eligible to get a green card already, i.e. the spouses of U.S. citizens ? It means you should seriously consider moving forward with your case based on current immigration laws.
Current immigration laws have never been more favorable toward the spouses of U.S. citizens, even those who entered the country illegally.
The spouses of U.S. citizens who entered the country lawfully are eligible to have their immigration interview here in the U.S., even if they have long overstayed their visa. This has been law for a long time. Eligible applicants get a green card in about 4 months.
The spouses of U.S. citizens who entered the country illegally still must return to their country to have their immigration interview, but the hardships of doing that have recently been significantly reduced.
The act of leaving the country after living here illegally for more than a year makes a person inadmissible for ten years, i.e. they may not re-enter the U.S. for ten years. However, there's an exception to that law if the U.S. citizen spouse can prove extreme hardship. The application for the request is known as "the hardship waiver." Under current regulations, the hardship waiver cannot be made until after the immigration interivew. This then condemns the applicant to remain outside the U.S. for 5-6 months while the government makes its decision. For many couples, that amount of separation is too much to bear. So they do nothing.
But on March 4, 2013, the government's provisional hardship waiver regulations go into effect. This new regulation changes when the request for the exception is made. From March 4, onwards, the exception is requested before the applicant even leaves the country. This means that if hardship waiver is approved, the successful applicant will be outside the U.S. for no more than about 3 weeks.
Under the provisional hardship waiver regulations, the process for getting the green card will take about 14-16 months, of which about 3 weeks will be spent outside the U.S.
So the question on the minds of everyone who entered the country illegally and is married to a U.S. citizen is this: "Am I likely to get a better offer if I wait for immigration reform?"
If you are inadmissible only because you have lived here illegally for more than a year, then the only better offer would be a permanent green card without leaving the country for an immigration interview.
But what Congress appears to be talking about at best is a conditional green card that won't convert to a permanent green card for five years or more. Compare that with a permanent green card within 14-16 months under the terms of the provisional hardship waiver.
In all likelihood, the amnesty process also would include a penalty that would be far more than the filing fee for the provisional hardship waiver and might even exceed the costs of living apart for three weeks.
In short, anyone who qualifies for the provisional hardship waiver should seriously consider moving forward with their application because whatever Congress comes up with for immigration reform either will take a lot longer (and be more expensive) or will not lead to eventual U.S. citizenship.
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