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Senate Proposes Changes to Inadmissibility Waivers

immigration reform now.jpgComprehensive Immigration Reform under the Senate "Gang of Eight" bill would not only create new avenues of relief for the over 11 million undocumented individuals in the United States, but it would also make dramatic changes to our current immigration laws.

One important and overall positive change outlined in the bill is the expansion of inadmissibility waivers-waivers that are available to individuals who would otherwise not be eligible to adjust status or immigrate to the United States due to their criminal records or history of immigration violations.

What is a waiver of inadmissibility?

Currently, individuals hoping to adjust to lawful permanent resident status or immigrate to the United States must prove that they are "admissible," or eligible to do so under federal law. For example, noncitizens who have ever claimed to be a U.S. citizen in order to receive an immigration benefit, or those who have committed serious crimes considered to be "aggravated felonies" are barred from immigrating. For these and other serious violations, no waivers are available.

However, there are certain grounds of "inadmissibility" that may be waived, provided that an applicant is eligible for the waiver. Among others, these grounds include misrepresentation, such as having ever presented a fake visa in order to enter the United States, certain minor criminal offenses, or having reentered or attempting to reenter the United States after having resided in the United States unlawfully for certain periods of time.

Under our current laws, waivers for most grounds of inadmissibility require noncitizens to show that their exclusion or removal from the United States would cause extreme hardship to a particular U.S. citizen or lawful resident relative. One of the problems with these types of waivers as they stand now is that very few people actually qualify for them.

The first hurdle is having the "right" type of family member that the particular waiver requires. For example, noncitizens hoping to waive a misrepresentation can only show hardship to a U.S. citizen or lawful permanent resident spouse or parent. If they have U.S. citizen or lawful resident children, but no spouse or parent, they do not qualify.

The second hurdle is showing "extreme hardship" itself. The law requires a showing that the qualifying family member would suffer beyond the typical consequences of deportation. Economic hardship and family separation, for example, are considered "normal" and would not, alone, count as "extreme." This is a high standard, and often one that families are unable to meet even if the deportation of their relative essentially means the destruction of their family unit and life as they know it.

Proposed changes to inadmissibility waivers

The Senate Gang of Eight has proposed some changes to the waiver laws that would make them more inclusive and accessible to immigrants facing deportation or hoping to adjust their status, as well as those outside the United States who are barred from reentering.

Waiver of unlawful presence

First, the Senate bill proposes to expand waivers of unlawful presence, which are available to eligible noncitizens who are inadmissible because they have resided in the United States unlawfully for more than six months or more than one year. Currently, as discussed above, noncitizens would only be eligible for this waiver if they can show that their deportation or bar to reentry would result in "extreme hardship" to a U.S. citizen or lawful permanent resident spouse or parent. The proposed new waiver would eliminate the requirement to show "extreme" hardship and instead require proof of "hardship," a much easier standard to meet. Additionally, the proposed waiver would allow U.S. citizen or lawful permanent resident children to serve as qualifying relatives.

This change would also greatly improve the new provisional waiver that was established in March of this year. The provisional waiver, or "I-601A waiver," allows noncitizens living in the United States to apply for a waiver of their unlawful presence from inside the U.S., instead of having to wait months or years abroad and risk not being able to return. However, under current law, the waiver is only available to immediate relatives of U.S. citizens who can show extreme hardship to a U.S. citizen spouse or parent. Again, the proposed waiver would add children to this category, and potentially allow the qualifying relatives to be lawful permanent residents as well.

Waiver of false claims to U.S. citizenship

The Senate bill also proposes new exceptions and an entirely new waiver for false claims to U.S. citizenship. Currently, any noncitizen who claims to be a U.S. citizen in order to receive an immigration benefit is deportable as well as permanently barred from immigrating or adjusting to lawful status in the United States. Under the new proposed law, this permanent bar would not apply to children under 18 or those without mental capacity to make a false claim, and would require that the individual "knowingly" make the false claim. For those who do not fall into these exceptions, a new waiver would be available upon a showing of extreme hardship to the noncitizen or a qualifying relative.

Discretionary waiver in removal proceedings

Finally, the bill proposes to grant authority to immigration judges and Department of Homeland Security (DHS) officers to waive inadmissibility factors or terminate removal proceedings for a noncitizen where it would not be contrary to public interest, where there would be hardship to a U.S. citizen or lawful permanent resident spouse, child, or parent, or where the noncitizen would be otherwise eligible for naturalization. Although the waiver would be fairly limited (it would not be available to those with serious criminal convictions, aggravated felony convictions, or to those who pose a national security threat), it could provide relief for individuals facing deportation who would otherwise be out of options.

The Senate bill is far from perfect, and perhaps a future blog post will discuss some of the extremely harmful provisions the Senators are proposing, including new grounds of inadmissibility and harsher criminal penalties for immigration violations. However, the Gang of Eight is making an effort to increase access to inadmissibility waivers, which is something that advocates have been pushing for a long time.

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