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Gerry Chapman
Recently we have seen two developments in the law that may be of interest to you.
1. New Procedures for filing Unlawful Presence Waiver Applications
First, in January the Obama Administration announced its intent to revise the procedures for processing unlawful presence waiver applications. The Administration has projected a late 2012 target date for the approval and implementation of these new procedures.
Many people believe, incorrectly, that the change will apply to anyone who needs to leave the US in order to process for any kind of visa. This is not correct. Based on what the Administration has said, the new procedures will apply only where all of the below factors exist:
1. The applicant must be processing for a family-based green card.
2. The applicant must be the spouse or minor child (under 21) of a US citizen.
3. The applicant still must meet the long-standing standards for obtaining a waiver: proof of extreme hardship to the qualifying relative (see #2 above).
4. The applicant must have one and only one ground of inadmissibility: unlawful presence in the US.
As a result, a person who is seeking an employment based green card cannot use the new procedures. Nor can a person who lacks a qualifying relative, or who has any additional grounds of inadmissibility. Qualifying relatives include parents or spouses.
Dangers in filing under the new procedures
What happens if USCIS denies the waiver application? The new proposal did not answer this question, and based on current USCIS practice, it is quite possible, if not likely, that USCIS will institute removal proceedings against a person when USCIS denies such a waiver application. As a result, any person who files with USCIS for such a waiver must understand that there is significant risk that, if USCIS denies the application, USCIS will institute removal proceedings against this person. USCIS regularly does this when it denies an Application for Adjustment of Status; there is no reason to believe that USCIS would act differently in a case where it denies a waiver application.
Decisions are discretionary
It also is important to remember that USCIS can (and will) issue decisions that are inconsistent with the decisions in other, similar cases. In effect, USCIS adjudicators will have a different take on different cases, and there is no way to predict what will happen in a given case. In addition, the decision that USCIS issues is a discretionary one, and even though we or you or both of us think that the waiver application is a strong one and that it should be approved, the USCIS adjudicator may disagree. An appeal can be taken or the applicant can file again, but due to the intensely fact specific nature of these cases, the first decision is likely to stand.
Collecting your evidence
If a person believes that his or her facts will support a strong waiver case and wishes to begin preparing the application and supporting materials, now is the time to do so. Evidence of hardship to the qualifying relative can include financial hardship, medical hardship, career hardship, inter-family hardship and the like. Before beginning to collect this evidence, an applicant should meet with an attorney who has experience with such waiver applications. Even where you have doubts about the strength of your case, the best step many times is to collect the evidence that you have available to you; once you review that evidence, you will have a much better idea of whether the case should be filed or delayed.
2. Recent 7th Circuit Appeals Court Decision on the meaning of “harboring” an illegal alien
On January 31, 2012, the 7th Circuit Court of Appeals overturned a conviction of a woman who had been prosecuted for harboring an undocumented man (her boyfriend). He had lived with her in an open and unshielded way for at least a year before he was arrested on drug trafficking charges. The boyfriend was convicted of the drug trafficking offense, and, the Court suggested, the government probably thought the woman was involved in that activity but could not prove it. As a result, the government indicted her under the harboring statute.
The Court reviewed a large number of cases, none of which gave consistent guidance on the meaning of the term “harboring”, but eventually the Court concluded that merely living with another person is not harboring. In reaching its decision, the Court contrasted one case where a harboring conviction was upheld: in that case, a Chinese restaurant owner had knowingly employed many undocumented workers; it also had provided housing to those workers, with the apparent intent to keep their presence unknown to other people. The Court placed significant emphasis on the fact that the restaurant owner did something other than just let these people live in housing that the employer sponsored; it also provided work for them, and made what could be viewed as a concerted effort to keep the public from knowing where they were outside of normal work hours.
The Court’s reasoning may not survive this case; one of the three judges dissented, and the government can appeal to the US Supreme Court. In addition, many state immigration laws now include similar language about harboring, so this could be a very important case for both the Department of Homeland Security and many states as well. Only time will tell whether the US Supreme Court will enter the fray on this issue; in the meantime, simply living with an undocumented boyfriend or girlfriend appears to be behavior that is protected under the law.
If you have any questions about other arrangements that may be in violation of the law, you should speak with a qualified immigration attorney to review your rights and obligations.
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