On January 6, 2012 – at the start of an election year – the Department of Homeland Security announced a small proposed change in the immigration law.  But it is making some big waves.

Under the current law, many people cannot get a green card without leaving the United States.  But  the current law also says that people who have been out of status for more than 1 year who then leave the United States cannot come back in for at least 10 years.

Hence the conundrum.  What if someone might qualify for a green card?  The current law says that if they file their papers and leave the United States, they have to wait not only for their papers to be processed, but if their papers are denied, they will be stuck outside the United States for at least 10 years.  Not much incentive to file.

It sure would be nice if someone who might qualify could know before they left whether they would be allowed back in.  That would make it much easier to be on the right side of the law.

This is exactly what the proposed rule does.  If it becomes law (and it HAS NOT yet!) it will allow aliens to get a “pre-approval” of their qualifying applications, so that all that’s left is for them to go pick up their visa at the consulate in their home country, and they will know with much more certainty that they will be allowed back in.  

This is definitely good news.  But as always – you have to be careful.

First, THERE IS NO NEW LAW YET.  Anyone who tells you that Obama made a new law and you have to file now to get your chance is lying to you.  In fact, if the new law is passed, and you already have an application pending, you will not qualify for the new law!

Second, the only type of application that is covered is what’s known as an “I-601 hardship waiver for unlawful presence.” What that means: it allows someone who has been out of status for more than 1 year to still enter the United States without having to wait for 10 years.  They have to show that being forced to be outside the United States will result in extreme hardship for their spouse and/or children (who have to be US citizens or have a green card.)  If you have another problem with your immigration status, this new law will probably not help you.

Third, you have to be able to tell whether you have a strong case or not before you file.  Because if you do not have a strong case, or if you somehow do not qualify, then when you file your waiver application and it is denied, you will probably be put into removal (deportation) proceedings.  So for some people, even though they might be able to benefit from the new law, it still may be dangerous to file.

Fourth, the law’s definition of “hardship” remains the same.  The only thing that the new law would change is the place to file the waiver application.  Nothing else changes.  It is not amnesty.  It is not immigration reform.  It’s just a way to make the process of applying for a green card more fair, so that you don’t have to risk being stuck outside the country for 10 years.

There is a lot of buzz about this announcement.  But seek the right help.  The wrong help can hurt your chances.

View the DHS announcement here.  Download the Federal Register notice here.