U Visa May Offer Unlikely Solution to Sponsoring an Undocumented Spouse

I have been approached more frequently since March 2013 by adult US citizen children wanting to sponsor their undocumented parents for green cards, now that the new “provisional waiver” law is in effect. I unfortunately have to explain the provisional waiver program is a policy, not a law change, and more importantly, that it doesn’t apply to parents of US citizens if they are hoping to qualify through their adult US citizen child, who is often the only one of their children with legal status. The provisional I-601a waiver program allows an immediate relative to apply for the 10 year bar waiver while still in the US to cut down on separation from their family due to prolonged waiver adjudication that requires that the immigrant wait outside of the US until the waiver is approved and the immigrant visa is issued. The 10 year bar waiver requires that the person being sponsored for the immigrant visa and who is subject to the bar have a qualifying relative for the waiver – a US citizen spouse or US citizen parent of their own. When both parents are undocumented and have no parents of their own in LPR or USC status, even with a USC child, the parents lack the qualifying relative necessary for the waiver. They just don’t qualify. 

So, I’m forced to look at other options. 

The U visa has turned out to be the remedy in many cases. If one of the parents can qualify for the U visa and assuming they are not divorced, the other parent can be added as to the main U visa petition as a “derivative.”

This is one of the only areas in federal immigration law that allows a spouse to be included on the same petition, which if approved, would also allow both undocumented spouses to obtain work authorization for four years and potential to apply for a U visa based green card after three years in U status.  

The U visa has also one of the most generous waivers available, even waiving the permanent bar (which is triggered by illegal entry after a removal order or illegal entry after more than 1 year of cumulative unlawful presence in the US). The permanent bar is otherwise non-waivable and requires that the immigrant stay outside the US for a ten-year period, no exceptions.  

U visas can be used for incidents of workplace violence, even attempted robberies (being held at knifepoint to steal a wallet), attempted car jackings, witnessing another get injured  or being victimized by a mugging as well as many other types of crimes – regardless of whether a crime is only classified as a misdemeanor and even if no visible injury exists as long as the immigrant can prove substantial mental harm from the threatened or actual violence. 

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