Obama Eases Legalization Process for Undocumented Spouses of Citizens

Fermin Trejo with his wife Anabella and their son, Devin. (Photo via La Tribuna Hispana)

Fermín Trejo is an American citizens whose Dominican parents arrived here more than 30 years ago and settled in Brooklyn, where he grew up.  A few years ago he moved to Long Island for work-related reasons, and met Anabella with whom he fell in love.  They got married, and now have a pretty little son, Devin, who will soon have his second birthday.

But not all was happy times.  Anabella, a native of Guatemalan, had not entered the country legally and so could not legalize her status, even though her husband is a citizen.

A 1996 law forbids illegal immigrants to remain in the country while their status is being adjusted. They have to return to their countries of origin to wait for their documentation to be completed, a process that can take three to 10 years.  This practically forces the affected party not even to initiate the process, but rather to remain in the shadows.

But recently the Obama administration issued new immigration regulations which will allow many United States citizens, possibly into the hundreds of thousands, to avoid these long periods of separation from their spouses, and allow their partners to become permanent residents.

So now Fermín can breathe easy.  Anabella will not have to leave the U.S., her husband and little Devin, to return to Guatemala and anxiously await a visa.

“We’re very happy with this news.  It’s a blessing from God that we won’t have to separate for so long in order to get my wife’s residency,” an emotional Fermín told La Tribuna Hispana.

Trejo, who is a technician and works at a hospital in Huntington, Long Island,  told us that he got to know his future wife at work, and that they have built a life together, managing to buy a house where they now live, and starting a young family with many prospects.

“I think the government has done right by people like my wife, who is a great worker.  Ever since she’s been in this country she has paid her taxes and fulfilled her obligations.  I definitely think it’s a reward for making all this effort, just like a lot of people do.”

The new regulations, announced by Secretary of Homeland Security Janet Napolitano on January 2, are in practical terms a rescinding of the punitive 1996 Immigration Reform and Control Act that penalizes immigrants who enter the country illegally, by not allowing them to adjust their status to become lawful residents here. They have to do so back home where they then face a ban on reentering for three years if they had been in the U.S. undocumented for between 6 and 12 months, and of up to 10 years if they had stayed undocumented for a year or more.

The risks for immigrants who had to leave the United States and return to their countries to await visas, even those who had already been authorized, have been so great that innumerable families have opted to not even to apply for residency, thus increasing the number of immigrants living in the country illegally.

Basic Requisites

According to the Department of Homeland Security (DHS), this measure will benefit not only persons who are married to a U.S. Citizen who entered the country without a visa, but also certain children and parents of adult citizens.

The children who can benefit will have to be between 18½ and 21 years old.  (The period of illegality does not begin until the age of 18.)  In other words, the younger children do not need this pardon – they can return any time to their countries of origin to obtain their residency permits.  Also, the parents of children over 21 years of age have to demonstrate that either a spouse or a parent that is a legal resident or a citizen, will experience “extreme suffering.”  

Immigration will accept applications for this provisional pardon beginning on March 3. But first, the beneficiaries need a petition approved from the person soliciting, usually from their citizen husbands or wives. It takes about three months for approval of such a petition. Then, the National Visa Center will solicit payment for the process at embassies and consulates. It is at this point that one can apply for this provisional pardon.

Attorney Sperling: “It’s a Complex Process but a Relief for the Families.”

Attorney David Sperling, an expert on immigration, said that the measure will no doubt benefit many families.  However, he also warned that the process is not without obstacles. “This is a complex process, with many twists and turns. ICE will need proof that the separation or deportation of the wife or husband will result in ‘extreme suffering.’ I have no doubt that obtaining this ‘pardon’ will be a rigorous process.

“If it’s not a real marriage, or if it’s just a marriage of convenience, and even if it’s a recent marriage without children, it will be difficult to get approval,” he pointed out.

Since this will be a very delicate process, he alerted anyone who might want to solicit that it would be best to have it guided by a competent professional.

“There will probably be ‘notaries’ offering their ‘services,’ but that’s dangerous because it’s very possible that people whose applications are rejected will face deportation trials,” he warned.

Also, in cases where one partner has a criminal record or an order of deportation or some other contact with immigration authorities, “it is essential to consult a good immigration lawyer,” he advised.

“Remember that the beneficiaries will still have to return to their countries of origin – for at least a week or two for fingerprint records and medical exams. If the application is not well prepared, or if there is doubt about the legitimacy of the marriage, there could be serious problems, and people could get stuck in their countries,” the lawyer explained.

Sperling said that nevertheless, for people who are already married it is much easier, because it is then clear that the marriage was not just for the papers. But for those who marry from this point on, immigration might have great doubts.

He added that ICE has not specified how many people might benefit from the new regulations. In the case of the “Dreamers,” it was estimated that as many as 1.7 million persons might benefit.  According to Sperling, fewer than 400,000 have applied.  “Personally, I believe more people are going to benefit from this regulation than from the Dreamers program [Deferred Action for Childhood Arrivals].  I also believe that the government wanted to exaggerate the number of DACA beneficiaries for political reasons, and because a presidential election was coming up.”

But nevertheless, as Sperling points out, “Eligible persons will need to have a petition approved before they apply for the pardon. In the great majority of cases, there is no need to wait for March 3.  They can start their petitions now,” he says.

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