Over the past few months, I’ve had consultations where just-turned-21-year-olds come in and want to start the immigration process for their undocumented parents. The families are excited and happy that the magic age of 21 has been reached. It breaks my heart when I tell them there isn’t anything that can be done.
When these families come in, they want to know how the parents can get a green card. If there wasn’t a lawful entry, adjustment of status in the United States isn’t an option. The smiles fade, but they still have hope and ask about consular processing. The problem here is that as soon as the parent steps foot outside of the United States, they trigger an unlawful presence bar. Depending on how long they were in the United States – typically well over one year – they face a ten-year bar in applying for a visa to return to the United States. They are trapped in their home country for a decade before the immigrant visa process can even begin.
The family then asks about waivers. There are many different types of waivers that “forgive” a variety of immigration violations. Every waiver is a little bit different, but they generally require two things. One, that there be a “Qualifying Relative.” This can be a U.S. citizen child, parent, or spouse. And two, that there be some sort of hardship or humanitarian reason for the waiver to be granted.
For foreign nationals who committed certain crimes, the qualifying relative can be a U.S. citizen or lawful permanent resident child, parent, or spouse. The standard for the hardship is “extreme,” which is a very high standard.
However, for unlawful presence, the only qualifying relatives are U.S. citizen or lawful permanent resident spouses or parents. Children, even U.S. citizen children, do not count as a qualifying relative. Without a qualifying relative, there is no waiver. Without a waiver, there is no way to come to the United States for at least ten years.
Why don’t U.S. citizen or lawful permanent resident children count for an unlawful presence waiver? I wish I knew. My hope is that it was just an oversight – someone was too quick in drafting legislation. Why would a criminal have more possibilities to apply for a waiver than someone who crossed the border without inspection? It doesn’t make any sense.
I have another hope, though. I hope that this oversight gets fixed. We don’t need comprehensive immigration reform. A quick addition of just seven letters – “or child” – would make every difference in the world to these families. Suddenly a waiver would be a possibility and while success is never guaranteed, at least a door of opportunity would be open.