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By Alex Horvath / The Californian
BY COURTENAY EDELHART Californian staff writer email@example.com
Eva Rafik-Diaz is a U.S. citizen, but her husband is an illegal Mexican immigrant.
Years ago, Rafik-Diaz, 35, filled out the federal I130 Petition for Alien Relative form, the first step toward helping a relative obtain citizenship. But she never went any further.
That's because her husband would have had to return to Mexico to apply for a lawful permanent resident visa, and under U.S. Department of Homeland Security rules, he would have been barred from re-entering the country for 10 years while that application was considered. The 10-year bar, as it's known, is punishment for having resided here illegally.
Spending a decade in Mexico wasn't an option for Rafik-Diaz's husband. Apart from the emotional distress of being separated, he's the family's sole breadwinner. Rafik-Diaz is a full-time graduate student at Cal State Bakersfield, and the couple has three children.
"My kids, we have expenses, and you have to start repaying your student loans as soon as you graduate, but I don't have a job yet," Rafik-Diaz said.
Starting March 4, however, an administrative rule change could provide Rafik-Diaz and families like hers some relief.
The new rule establishes a process in which some people are allowed to apply for a provisional unlawful presence waiver before they depart for their home countries for visa interviews. Individuals who obtain an I-601A waiver could return to the United States while they wait for an answer on their application.
The waiver doesn't give applicants the right to work in the United States legally. Nor is it a guarantee that their visa applications will be approved. It does, however, remove the threat of a 10-year bar.
"The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this rule achieves," U.S. Citizenship and Immigration Services Director Alejandro Mayorkas said in a statement released when the change was announced last month. "The change will have a significant impact on American families by greatly reducing the time family members are separated from those they rely upon."
Local immigration attorneys have been inundated with calls about the rule change, which they said could affect more people than Deferred Action for Childhood Arrivals, or DACA, for which an estimated 1.8 million illegal immigrants may be eligible. That's a proposal for a renewable reprieve against deportation for immigrants whose parents brought them to the United States illegally when they were age 15 or younger.
Bakersfield attorney Win Eaton estimates his office has received at least a half dozen calls a day about the I-601A waiver.
"This is huge," he said.
But just as not all illegal immigrants who arrived as children are eligible for the Obama administration's DACA initiative, not everyone is eligible to take advantage of the waiver.
For one thing, the citizen who would be harmed by a 10-year bar cannot be a child, so immigrants won't be able to use children born in the United States after illegal entry as a path to citizenship.
Immigrants whose citizen parents or spouses would be harmed might be considered, however.
The American relative must be a citizen, not a permanent resident.
And there would have to be "extreme, unusual hardship" to that person, not mere inconvenience or heartache, Eaton said.
"You would have to demonstrate that in your interview at the consulate's office," he said.
That visa interview, by the way, still has to take place in the home country, so travel outside the United States remains necessary. The only thing new is the length of time the applicant has to be gone.
"When they leave for the interview, the waiver is already approved, so they don't have that uncertainty anymore whether they're going to get to come back to families who need them," said United Farm Worker Foundation attorney Richard Gorman, who has been leading informational workshops to help educate families about the rule change.
Before they can even schedule a visa interview, applicants have to have an already approved I130 petition. That's the petition for legal recognition of a relationship with a U.S. citizen.
The petition and the waiver cannot be sought simultaneously.
And immigrants who already have an interview scheduled with the U.S. Department of State are not eligible for a waiver.
Longstanding rules that deny visas to serious criminals remain in place, so it's possible an applicant with a waiver could still be denied a visa after a background check.
Rafik-Diaz said she's nevertheless feeling hopeful for the first time in a long time that her husband has a chance at a normal life.
If he gets a green card, she said, he'll be able to find work near their Bakersfield home instead of commuting to Delano every day, freeing up more time with the family and for classes to learn English.
"When I heard about this, oh I was so excited," Rafik-Diaz said.