HIGHLIGHTS OF QUESTIONS ASKED AND ANSWERED AT JANUARY 6, 2012 PRESS CONFERENCE BETWEEN MEDIA AND USCIS RE
SUMMARY:
“And as I articulated previously, current law provides for a waiver of inadmissibility, and current law provides that extreme hardship to a United States citizen should be avoided, and the goal here [with proposed rule change for provisional waiver] is to accomplish that goal more effectively and more efficiently.”
USCIS Director Alejandro Mayorkas, Jan. 6, 2012 Press Conference
[Again, we are providing highlights of the questions and answers between the USCIS director and members of the media who attended the January 6, 2012 press conference announcing the proposed rule changes involving length of time separated from relative while they await overseas for ineligibility waiver due to extreme hardship provisions under I-601. Answers are in italics, questions in normal type, and bolding is ours for clarification or emphasis]
Question:
I just wanted to clarify one thing, and if you could explain this to me, okay, so let’s say an alien satisfies or meets the requirement of the only ground of inadmissibility being unlawful presence, does that – and it meets, obviously, their requirement of being a relative or immediate son or daughter or spouse of U.S. citizen, does that immediately constitute extreme hardship or is there an additional burden for that alien to prove extreme hardship?
Alejandro Mayorkas:
[What] constitutes extreme hardship, and the standard of extreme hardship is . . . published immigration cases, and it is a fact-based inquiry and the law speaks to a review of the totality of the circumstances. But the standard is a rigorous one and it is important to emphasize that it is extreme hardship to the United States citizen.
Question:
Could you tell me about how many people this will affect and when this change would go into effect?
Alejandro Mayorkas:
So let me answer both questions. We do not know how many people will be impacted. Let me, if I can though, provide you with some context. We receive – last year, for example, we received approximately 485,000 petitions to establish the relationship of immediate relatives or the familial relationship, I should say, between an individual and a U.S. citizen or lawful permanent resident, approximately 485,000.
Explains the filters to who is affected
Of those petitions to establish familial relationship, the I-130, here we take that number and layer a number of filters. First, we are dealing here in this proposed systems change only immediate relatives, so only the spouses or sons or daughters of United States citizens. And that’s actually a subset of immediate relatives, one. The second filter is we are dealing with individuals whose only grounds of inadmissibility is unlawful presence.
Another filter is that we are dealing with only those who . . . can only adjust their status by first having to leave the United States. We are not addressing a population that can adjust status while remaining here. And we are also only dealing with those whose separation would affect an extreme hardship on a United States citizen.
The second, I think, number that I would provide to you by way of context is last year we received approximately 23,000 applications for Waivers of Inadmissibility, so that, I think, provides, I think, some numbers that we are using to guide ourselves.
With respect to your second question on timeline, it is our goal – let me share with you what, really, the next step is because what we have posted today is a Notice of Intent to proceed with a proposed regulation.
Well, we will have a listening session with the public that will inform our rule-making. We will publish a for-public-comment a proposed rule. We will take those public comments, and those public comments will inform our final rule that we will post. And it is our goal to make that final rule effective and begin processing applications this year.
Further Question to Clarify numbers:
I’m sorry, but the numbers you gave, there’s a wide disparity. Do you have an idea of where it would closer fall in, the 23,000 or the 480,000?
Alejandro Mayorkas:
Those are two very different, very different, numbers. One is the numbers, I said, of the I-130s, the petitions to establish a familial relationship of which a subset is immediate relatives of U.S. citizens, and the other is the number of Waivers of Inadmissibility that we receive as an agency. That does not define the number of individuals who are impacted or would be impacted by this regulation, but nevertheless they are two numbers that are relevant to your question and the only numbers we really have.
Question:
I was wondering if you have any clear estimation of how much time will this new process take.
Alejandro Mayorkas:
Well, let me answer [about] the time this new process will take. Let me make sure that everyone understands something; that the time it takes us as an agency to adjudicate the waiver very well may not change.
That time period is six months on average, but sometimes more. We’re always, of course, interested in improving our processing times, but those are our processing times currently. And we don’t anticipate an acceleration of that processing time. However, under this new process we will be adjudicating that waiver before the individual has to depart the United States.
And what – the time that really will be reduced is the time of separation between the family member whose waiver has been granted and the United States citizen who would suffer extreme hardship by virtue of that separation. So that’s the critical time period that current law, as it exists now, is designed to avoid.
And so we are going to be working very closely with the Department of State to ensure that that time of separation, the time when an individual has already departed the United States with a provisional waiver, the time it takes for that provisional waiver to become final, the visa to be issued, and the person to be admitted, our goal is to reduce that time. And it will not be months. It will be days or weeks. That is our goal.
Question:
I just wanted to clarify with the numbers. I understand that in FY 2011 there was something like 17,000 hardship waivers granted, if that’s correct. I’m wondering how many applications were received. I mean, how many were granted out of the applications received a year?
Alejandro Mayorkas:
So I think I – maybe I didn’t make myself clear, but there are about 23,000 applications received for waivers and about 17,000 approved.
Question:
Can you give me an example of what would constitute extreme hardship for a U.S. citizen, maybe from some past cases?
Alejandro Mayorkas:
So I don’t – I appreciate the question. I don’t have a particular case in mind, but let me share with you perhaps an example on a very generalized basis so – because – a type of situation, for example, would be a U.S. citizen who suffers a grave illness whose sole caretaker is a son or daughter and who relies on that son or daughter to – for the medical care and the like. That’s the type of thing that we have seen in an extreme hardship case with, of course, greater detail and more facts. And as I alluded to earlier this is a fact-based inquiry. It’s – and the standard is extreme hardship defined in the law. But that type of need, that type of hardship is an example of the – a very generalized fact pattern we’ve seen in cases.
Question:
whether this applies only to U.S. citizens or also to permanent residents, green card holders.
Alejandro Mayorkas:
This applies to the spouses and sons and daughters of United States citizens. It does not apply to the relatives of lawful permanent residents.
Questions:
I wondered, I’m just a little bit confused by the numbers. Why wouldn’t 23,000, then, be the applicable number here? That’s the number of people applying for waivers. Wouldn’t that be the pool of people who are all affected by this new rule change?
Alejandro Mayorkas:
No, because, you know, and this is anecdotally, so please understand it’s anecdotally, what we have heard from the community, that some people who very well might be eligible to receive a waiver do not come forward and apply for the waiver because they would have to depart the United States before applying for the waiver. And the uncertainty of that – they are unwilling — and the unpredictability — they’re unwilling to risk the extreme hardship to the United States citizen relative by virtue of a lengthy separation. And so we very well might not see waiver applications from individuals who very well might qualify.
Remember, the unlawful presence in the United States triggers bars of inadmissibility – bars of admissibility, and so if somebody has been unlawfully present in the United States for 180 days or more, but less than a year, then the bar to admission is three years in duration. If somebody has been unlawfully present in the United States for a year or more the bar is ten years in duration, and they are seeking a waiver of that bar.
The law currently provides for a waiver of those bars if the separation would cause extreme hardship, and in – faced with those bars and confronting uncertainty or unpredictability, perhaps people are not coming forward to seek a waiver to which they very well might be eligible.
Question:
What I’m wondering is in addition to the mentioned individuals that you say would benefit, wouldn’t this benefit a parent who has been here unlawfully but who has a U.S.-born child who turns 21 and is in a position to sponsor one or both parents who are here unlawfully to, you know, for legal, you know, for a green card?
Alejandro Mayorkas:
I don’t know the answer to that question. I don’t know – Lori Scialabba, our Deputy Director, very well might know the answer.
Lori Scialabba:
The answer is that yes it’s possible. The one issue with that particular scenario is that in terms of the waiver the qualifying relative has to be spouse or parent, so that child who is petitioning for a parent, that parent is going to have to show extreme hardship to a qualifying relative which would be a parent or a spouse. They couldn’t show the extreme hardship to the child that is petitioning for them.
And as I articulated previously, current law provides for a waiver of inadmissibility, and current law provides that extreme hardship to a United States citizen should be avoided, and the goal here is to accomplish that goal more effectively and more efficiently.
Alejandro Mayorkas:
So let me – before turning it over to Lori to really just repeat what she articulated earlier, because this – let me say this. This is an area that is highly technical, and the proposed rule that we will be promulgating and publishing for public comment will go through these types of technicalities and provide, of course, a far, far greater detail than our mere Notice of Intent posted today provides.
The Notice of Intent really just outlines what our intentions are, but this is exactly why the rulemaking process is established, so that we can provide greater details to the public, give the public an understanding of what is intended, and give the public an opportunity to comment. So, this is an area that is very technical, but, Lori, if you’d be so kind as to repeat what you shared in response to Miriam’s earlier question.
Lori Scialabba:
Sure. It is possible that the adult child who has reached the age of 21 can petition for the parent. The issue is that the waiver only allows you to show extreme hardship to a qualifying relative, and the qualifying relative has to be a parent or spouse.
So the parent that the child is petitioning for cannot show extreme hardship to that child. They have to be able to show extreme hardship to a parent, and they might have an elderly parent here who is a United States citizen, or a spouse who is a United States citizen.
Question:
About the 23,000 figure, I wanted to know, does that include applications by aliens who are technically eligible to adjust inside the United States already because they came here on visas or is that 23,000 number only for people who are automatically required to go overseas to then try to come back? That’s sort of a technical question.
I also would like to know why you’ve decided to make this change now given that there have been complaints about this process and the lengthy separations for years.
Alejandro Mayorkas:
Thank you. So the 23,000 figure applies to the number of waivers for individuals outside of the United States, so the latter category that you identified. And in response to your second question, we are always working on implementing efficiencies in our administration of the immigration system. Early on in my tenure one of the first efficiencies that we were able to implement is a redesigned web site that provided greater transparency to the public and greater and faster information to applicants and petitioners and we are prepared to detail and implement this efficiency now.
Question:
I’m wondering if just plain emotional distress, if a spouse or a parent who was having some mental health problem as a result of the child or sibling being refused admission.
Alejandro Mayorkas:
I see. So that would be – that would be one factor that we would consider when looking at the totality of the circumstances because there very well may be additional factors that would weigh in favor of finding extreme hardship, and there very well may be other factors that mitigate against the finding of extreme hardship, and so we have to take a look at the case and all of the facts that arise in that case and review it as a totality as the law provides.
And so medical – a medical issue, emotional issue, certain financial issues, we would look at those issues, life issues, in the totality as the law instructs us to do. And somebody who is convicted of a crime and that conviction is a ground of inadmissibility would not be subject to the new process.
Question:
Is [this] the beginning of backdoor amnesty.
Alejandro Mayorkas:
I think I addressed that in my opening remarks. The law, as it currently provides, provides for a Waiver of Inadmissibility if one can demonstrate extreme hardship to the United States citizen. The law as currently written has articulated a goal of alleviating extreme hardship to a United States citizen. This is in the interest of a United States citizen. What we are doing is – our goal is to implement through the regulatory process – that we hope to implement a process efficiency that will achieve the law – the current law’s clearly articulated goal more ably.
Question:
I understand that the way the law is written that the American citizen with extreme hardship has to be the spouse or the parent, correct?
Alejandro Mayorkas:
Yes.
Question-cont.
But I’m just wondering, though, if you guys have any background on why it was crafted that way and not to include the child as the person who would have to have the extreme hardship, because I can see, you know, the example that you gave us about someone who is taking care of someone else, I can see, you know, the other way around where the child would be the person – extreme hardship – would need the parent who is in the country illegally to take care of that child who is an American citizen and that would be an extreme hardship. So I’m just wondering, in regards to the waiver, I’m just wondering why exclude the child? I understand that…
Alejandro Mayorkas:
So, yes, so, you know, I apologize for not having in mind, as we are on this call today, the legislative history behind the statute as currently written insofar as why it provided for extreme hardship as it did under the waiver process. As it did, the only thing that I can really speak to is the fact that we are providing what I think is a very important process improvement to the law as it is currently written.
Question:
I know that someone has already asked you about what precipitated this change in policy and why now. And, you know, you gave a standard answer, but given how much you guys work on this issue and the human toll that it takes, I mean, what kind of stories were you hearing? What information were you assessing that led you to take on this hot potato of an issue at this juncture?
Alejandro Mayorkas:
You know, my answer was the real answer. I’m not exactly sure what a standard answer means, but I appreciate that. You know, one of the things that we have observed in adjudicating waivers of extreme hardship, and one of the things that we have heard from the public and one of the things that we understand from our experience generally in dealing with these cases, is we have seen cases of extreme hardship where the time of separation is quite lengthy and where that length of time results in an enduring hardship that the law, as currently written, is designed to avoid. And so we understand that this process efficiency that we are proposing will alleviate that aspect of the hardship.
Question:
Does it change at all – somebody who is from Mexico and fits the eligibility requirements for this, it doesn’t change at all the process that they would have to go through to go to Ciudad Juarez, to the consulate there. It just changes the time that they have to spend after doing that interview? Could you clarify, like, how, like, a typical case?
Alejandro Mayorkas:
Well, so, that is correct. I mean, they will – what they will do now is rather than go back and forth – their case going back and forth between USCIS and the Department of State – they will go to their consular interview with the provisional waiver in hand, and so that is our goal…and we will be working very closely with the Department of State.
Our goal is that their case will not go back and forth, that they will go to the Department of State with the provisional waiver, and the Department of State will then confirm or not, but in cases where it is ultimately – the waiver – provisional waiver becomes final they will confirm that the ground of inadmissibility is as was presented, the only ground is unlawful presence, the provisional waiver will be final – the visa finalized.
The visa will be issued, and the individual will be admitted to the United States so that the time of adjudication of that waiver will not occur while the individual is out of the United States already having had the consular interview. I think we have time for a couple more.
Question:
I am just wondering – we’ve covered some stories here where spouses of U.S. citizens have returned to places like El Salvador and Guatemala to fix their status and have been murdered while they’re down there. I’m wondering, I suppose shortening the length of time might improve the situation for them, but are there some states that are just too dangerous to go back to and so they can fix their status here?
Alejandro Mayorkas:
So we are, of course, aware of that. I think you have identified a very significant benefit of reducing the time of separation. Not only do we reduce the time of hardship that the U.S. citizen suffers by virtue of the separation, but we, of course, by reducing the time that the individual is in the foreign country and if indeed the situation in that foreign country is precarious, the reduced time is reduced risk.
We will be working with the Department of State closely, as I’ve indicated, to make this process, you know, as good as possible in that regard, and in all other regards, to the extent that we can.
I appreciate everyone’s interest in this, and I appreciate the time that you have taken. We feel that this proposed regulatory change that will significantly reduce the time that U.S. citizens are separated from their spouses and children under certain circumstances is a very important step forward that we have identified. What we will be implementing is a process improvement that will significantly alleviate the extreme hardship that U.S. citizens endure by virtue of separation from their spouses and children.