Published on:

The Perils of Immigrant Visa Processing Abroad: Why Congress Should Eliminate the 3 and 10-Year Bars

CNN reports on a heartbreaking story Dangerous path to legal status about a young woman, Tanya Nava, who applied for her immigrant visa or green card at the U.S. Consulate in Ciudad Juarez, and now regrets that she ever did. Her husband, Jake Reyes-Neal, an American citizen and father of their child, had sponsored Tanya, only to be killed in the process while waiting with his wife to get her visa. Because Ms. Nava evidently had been in the U.S. illegally since she was a young girl, her physical departure from the U.S. to get her green card at the consulate triggered the 10-year bar to her return to the U.S. To come back earlier than 10 years, she filed for a waiver of the unauthorized stay bar. This additional application was filed at the consulate and then routed to USCIS which processes the waiver application. The only problem is that it can take weeks, months and even years in some cases for the waiver to be processed. While waiting in Ciudad Juarez, Mr. Reyes-Neal was shot to death. This is why the government’s proposal to allow for stateside processing of waivers, mentioned in my blog post on Provisional I-601 Waiver Update, could provide relief for some families facing long periods of separation.

Although an extreme situation for a family facing separation due to the bars or waiver processing, this family’s situation is not uncommon. Undocumented applicants for visas include people from other dangerous locales, including Nigeria, Syria, Egypt, Somalia and more. Even families not from dangerous countries face months and months of hardship due to family separation. Often the breadwinners must leave the country and cannot find work in their home country while they wait. Applicants who spent most of their lives in the U.S. may not speak the language, have resources or know anyone in their home countries. Relatives might be ill or face other undue hardships. Families have to decide whether to separate during the long process or whether the American sponsor must give up everything to join family members in a country the sponsor may not know. The plight of the waiver seekers has been made into a film, Tony and Janina’s American Wedding, about a Polish-American family facing the long hardships due to separation during the waiver process.

When this Seattle immigration attorney began practicing immigration law over 25 years ago, if someone was out of status, the penalty was to return to the home country and seek a visa at a US consulate. The applicant would be back in a few days or weeks with valid status and an immigrant visa. However, in the 1990s, Congress downsized consulates and beefed up security at facilities worldwide. At about the same time, Congress enacted one of the most onerous provisions in immigration law, the three and 10-year bars to return due to unauthorized stay. Perhaps an unintended result, today we have the largest number of undocumented immigrants in the U.S. ever, many of whom have been living long term in the U.S. with a legal route to lawful status, but who are not willing to risk the separation, hardships and unpredictability inherent in consular processing visa and waiver applications. Thousands of families are caught between a rock and a hard place: whether to remain in the U.S. illegally or whether to gamble one’s life, family, and/or job by consular processing a visa. The irony is that now Ciudad Juarez is the largest consulate in the world, handling 10,000 immigrant visas/green cards per month because Congress chose to ding immigrants in unauthorized stay. Although the $66 million facility is supported in part by immigrant-paid processing fees, the facility handles other law enforcement and diplomatic relations functions as well as services for American citizens in Mexico, all at taxpayer expense.

The CNN article further notes that Tanya and Jake chose for whatever reason not to consult with a lawyer. Because of the serious strategic decisions to be made in whether to apply for a visa given Tanya’s background in the U.S., families in similar situations should seek the advice of a qualified immigration lawyer. Handling immigration issues on one’s own or with unqualified non-lawyers that on the surface appear simple (“It’s just a simple marriage case”) can lead to complications or even tragedies as this family faced.

Whether the proposed stateside processing of waivers will be a panacea that really helps families remains to be seen. The proposed regulation describing the process has not yet been released. Even so, USCIS presently contemplates the process to apply to a very narrow group of applicants. The better answer to the problem of family separation would be for Congress to repeal the unauthorized stay bars that have caused untold family hardships and have created a government cottage industry.