The President by executive order in February 2012 revised the Immigration Law by providing that US citizens married to undocumented aliens in the United States may petition for waivers from The Immigration Service instead of Consulates abroad. While the waiver applications are pending the undocumented spouses may wait in the United States and when these Waiver application are approved, then visa appointments may be made in the spouse’s country. The President announced as his reasons for the change was to avoid a long separation of the immigrant from his/ her spouse and children in the United States. Once the waiver is issued the President predicted that the Consular processing abroad should only take about one month. The issue of the alien’s illegal entry into the United States would have been resolved by the waiver.
An additional advantage in applying for the Waiver in the United States is that the Immigration Service is under the review of the Courts and is not likely to be arbitrary and capricious. Frequently the Consulates have the tendency to precipitous or even prejudiced judgments because United States Consulates abroad are not subject to any Court review. By a United States Supreme Court decision in the 1920s, a Court of Law in the United States may not review Consular decisions.
The process for the Waiver starts with an Alien Relative Petition which the United States citizen may file with the Immigration Service where the US citizen resides. This process now takes about 6 month. After the approval of the alien relative’s petition, the citizen may apply for the Waiver here. The citizen must demonstrate unusually exceptional hardship to the citizen if the alien spouse is not permitted to reenter the United States after the interview. Extreme anxieties, depression, nightmares, difficulty in concentrating on work, economic hardship are all factors. If there are children the citizen may refer to the anxieties that arise from the children’s fears that they might not see their absent parent again.
It is advisable that the United States citizen seek psychoanalytic help as a means of assuaging the expected separation that would be entailed. Not only will the psychoanalyst assist the citizen applicant, but also provide proof from the psychoanalyst’s report of the reality of the citizen’s anxieties and depression to obtain the United States Immigration Service’s consideration.
When the waiver is granted, arrangements for the immigrant visa interview may be arranged. In the Consulate abroad there will be a medical exam and the fingerprints will be taken to ascertain that the alien has not committed a crime in his/her country. Lastly the Consulates will review the affidavits of support to verify that the sponsoring US citizen and any co-sponsor(s) exceed the poverty level to enable the immigrant to return immediately to the United States.
This procedure should avoid a long separation of spouses and should assure a more measured way of dealing with Waivers.
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