We have discussed the legal arguments in this matter on numerous occasions.  However, from the standpoint of policy, the question remains how long a person would have to wait to immigrate to the U.S. if the courts were to defer to Matter of Wang.

On May 11, three amicus (friend of the court) briefs were filed in support of our position.  Attorney Charles Wheeler who co-authored one of the amicus briefs is the author of the definitive book regarding the Child Status Protection Act.  Much to his credit, Charles took the time to look behind the dates in the Visa Bulletin, and to analyze the actual numbers behind the bulletin.  His conclusions are startling. 

Before revealing Charles’ conclusions, let’s set the stage by providing the following hypothetical:  Juan was born in Mexico on January 1, 1990.  Exactly, two years later, on Juan’s 2nd birthday, his grandfather, a citizen of the United States submitted a visa petition on behalf of Juan’s mother and her family.  The INS approved the petition after one month, but because of huge backlogs in the family-based 3rd category (married sons and daughters of U.S. citizens) for persons born in Mexico, the family was forced wait over 20 years, until March 1, 2012, for their priority date to be current. 

Juan’s age when the priority date became current was 22 years and 2 months.  Applying the mathematical formula in CSPA, the length of time that the visa petition was pending  (1 month) can be subtracted from his age.   And under section 424 of the Patriot Act, another 45 days may be subtracted from Juan’s age.  However, even after these calculations, Juan’s age is still over 21.

Can Juan, after waiting in line for 20 years, immigrate to the U.S. together with his parents?

CSPA (8 U.S.C. 1153(h)(3)) provides as follows:

“(3) RETENTION OF PRIORITY DATE- If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”

We believe that this section of law clearly states that Juan, as a derivative beneficiary of his U.S. citizen grandfather’s visa petition. is entitled to retain his January 1, 1992 priority date and immigrate to the U.S. under the family-based 2B category as the unmarried son of a permanent resident mother.  The government disagrees. They argue that Matter of Wang correctly held that the only derivative beneficiaries who Congress intended this section to benefit are those who fall under the family-based 2A category (children under the age of 21) who “age-out” into the 2B category.  As stated in Matter of Wang, they argue that if all derivative beneficiaries could convert to 2B status, they would be “jumping the line”.

However, let’s step back from the legal arguments for a moment, and consider the practical effect of deferring to Wang.  If Juan’s mother submits a visa petition for Juan in the 2B category, how long is she going to have to wait until Juan is legally able to join her in the U.S.?

Charles correctly states that the number of persons who may immigrate to the U.S. under the family-based 2B category is limited to 26,266 annually.  There is a per-country limit of 7%, or 1,841 per year.  How many people born in Mexico are waiting currently in line for permanent residence in this category?  Here, Charles cites the the Department of State’s Annual Immigrant Visa Waiting List Report which provides the following number: 212,621.  Dividing this number by Mexico’s annual quota in the 2B category, the result is 115.5.  This is the number of years that it will take Juan to immigrate to the U.S. if the government is able to persuade the court that this is what Congress intended when they passed CSPA.

It is safe to assume that neither Juan nor his parents will be alive 115 years from now.  Therefore, the practical effect of deferring to Matter of Wang would be to prevent Juan, or anyone similarly situated, from ever being able to reunite with his family in the U.S.

If this indeed was Congress’ desire, one has to wonder why the law they passed in 2002 was called the Child Status Protection Act rather than the Child Status Prevention Act.

These silent raids have increased from virtually zero under the previous administration to over 7,500 under President Obama.

The number of employers arrested by ICE for criminal immigration violations this year is over 100 and we are only in May.  The amount of administrative fines levied against employers in 2012 is quickly approaching $5,000,000.

In the words of Senator Dianne Feinstein (D-CA), these I-9 audits  “are going to decimate our farms and farm-dependent jobs”.

And it isn’t just farms.  Who does our gardening, takes care of our kids and our elderly parents, and staffs our restaurants and hotels? 

When politicians, particularly those on the far right, rail against “illegal aliens”, they conveniently ignore the immigration status of those who wait on them, cook for them, park their cars and pick their fruits and vegetables.

Employers are not so lucky. 

Under President Bush, there would be a big immigration raid every few months with hundreds of workers arrested for using fake documents, prosecuted, jailed and deported.  Deported only to return in a few days or weeks.

Under President Obama, it is the employers who must pay the piper.  Few employers are farsighted enough to hire an attorney to perform an audit of their I-9 forms before they receive a Notice of Inspection from U.S. Immigration and Customs Enforcement (ICE).  However, once ICE descends on an employer, frantic phone calls are made to immigration lawyers.  Often, this is too little, too late. Many employers, even those who faithfully follow the I-9 requirements, are forced to fire a substantial portion of their workforce.

What is the answer to this government-enforced madness?

Representative Lamar Smith (R-TX), Chairman of the House Judiciary Committee advocates the Big Government approach.  Instead of I-9 forms, “we should replace this outdated system with E-Verify, a successful Web-based program that quickly identifies illegal immigrants working in the U.S…”

Even for true believers who think that E-Verify works with amazing accuracy and limited intrusion into the workplace, it ought to be obvious that one significant result of making this system mandatory would be that millions of people would lose their jobs.

And who then would do the work that makes our economy run?  Would unemployed Americans work the fields?  How many laid off workers would take a job making beds at a hotel or washing plates in a restaurant?

Immigration enforcement, never mind mandatory E-Verify, without Comprehensive Immigration Reform, would further cripple our still sputtering economic recovery.

Take it from a former INS prosecutor, our present immigration policies have about as much chance of succeeding as did Prohibition in the 1920s.

The issue in this case is whether a child who is a derivative beneficiary of a visa petition who ages-out before his priority date becomes current may retain the priority date of the original petition and automatically convert to the family-based 2B category. In most cases, this allows the child to immigrate to the U.S. together with his parents.

The government maintains that the child is not entitled to any credit for all of the years that he waited in line, and must go to the end of the line in the 2B category, and wait another 8 to 20 years for his priority date to become current. If he marries during this period, his priority date is lost forever.

This restrictive reading of the statute is, however, directly contrary to the statutory language of the Child Status Protection Act (CSPA) and to the intent of the law. CSPA was enacted in order to keep immigrant families intact despite family-based and employment-based waiting times which can range up to 22 years or more.

Section 3 of CSPA is entitled “Treatment of Certain Unmarried Sons and Daughters Seeking Status as Family-Based, Employment-Sponsored and Diversity Immigrants”.  It is composed of a number of subsections, the first three of which are relevant to our case:

Subsection 1 establishes a formula by which the length of time that a visa petition is pending is subtracted from the child’s age.  This protects many children from aging-out if they reach the age of 21 before their priority dates become current.  For example, a 24-year-old who is the derivative beneficiary of a visa petition that was pending for 4 years is considered to be 20 years of age, and may immigrate together with his parents.

Subsection 2 defines which petitions are covered by this paragraph.  These include visa petitions filed under the family-based 2A category and all petitions for which the child is a derivative beneficiary.

Subsection 3 is entitled “Retention of Priority Date” and describes what happens when a child’s age is determined to be 21 years of age or older after the subtraction formula in Subsection 1 has been applied.  It provides that “…his petition shall be automatically converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”

To understand how this works, let’s take the following example:

One of our plaintiffs, Elizabeth Magpantay, and her family were sponsored for green cards by her U.S. citizen father in January 1991.  The visa petition was approved within 2 months.  However, their priority dates did not become current until nearly 15 years later, in December 2005.  

During this waiting period, her children turned 21 years of age: Melizza in 1999, Ricardo in 2001 and Christine in 2005.  Subtracting the 2 months that the visa petition was pending from their ages did not prevent them from aging-out.  In 2006, Elizabeth and her husband immigrated to the U.S., and were forced to leave Melizza, Ricardo and Christine behind in the Philippines.

In 2007, Elizabeth filed visa petitions for her children under the family-based 2B category.  Relying on CSPA, she requested that her children retain the 1991 priority date of the original petition.  The government denied her request and gave them 2007 priority dates.  Since there is currently a 10-year wait under the 2B category for Filipinos, Melizza, Ricardo and Christine would have to remain unmarried and wait until 2017 in order to join their parents in the U.S.

In seeking to justify this decision, the government relies on erroneous conclusions reached in 2009 by the Board of Immigration Appeals (BIA) in Matter of Wang.   Wang held that the language of CSPA with regard to what petitions are covered in subsection 3 above is ambiguous, and that the legislative history indicates that CSPA is concerned only with administrative delays, not with delays caused by the operation of the Visa Bulletin.  However, as we have explained in previous articles and as the U.S. Court of Appeals held in Khalid v. Holder, 655 F.3d 363 (2011), the language of the statute is unambiguous: subsection 3 applies to all derivative beneficiaries of family-based and employment-based visa petitions.  Futhermore, Matter of Wang, improperly disregards regulations and portions of the legislative history which do not support its erroneous conclusions.

The 9th Circuit Court of Appeals has agreed to rehear our class action lawsuit during the week of June 18, and we are very hopeful that a positive outcome will result, not just for our plaintiffs, but for all immigrant families. 

The worldwide family categories all advance modestly, from 3 to 5 weeks. For persons born in Mexico and the Philippines, many of the categories fail to advance at all.

The worldwide EB-3 category moves forward 3 weeks while the other worldwide employment categories remain current.

The big news is that the EB-2 category for persons born in mainland China and India, retrogresses 3 years back to August 15, 2007, and that no relief can be expected until the new fiscal year begins on October 1, 2012.

Here is how the government describes the situation in the Visa Bulletin:

D. RETROGRESSION OF THE CHINA-MAINLAND AND INDIA EMPLOYMENT SECOND PREFERENCE CUT-OFF DATE

USCIS has indicated that it will continue accepting China and India Employment Second preference I-485 filings based on the originally announced April cut-off date.

FAMILY CATEGORIES

EMPLOYMENT CATEGORIES

The worldwide family-based categories advanced between 4 and 10 weeks when the while the employment-based (EB) categories barely budged.

For the worldwide family-based categories, the 1st preference category (unmarried adult sons and daughters of US citizens) advanced 8 weeks, the 2A preference (spouses and children of lawful permanent residents)  moved forward 10 weeks, the 2B category (unmarried adult sons and daughters of lawful permanent residents) advanced 8 weeks, the 3rd preference category (married sons and daughters of US citizens) moved ahead 6 weeks and those in the 4th preference category (brothers and sisters of US citizens) saw a 4-week advance.

However, for persons born in Mexico and the Philippines, many categories failed to advance at all, and none moved forward more than 2 weeks.

FAMILY CATEGORIES

The April 2012 Visa Bulletin was downright depressing for those in the employment-based categories.  EB-2 China and India remain frozen in time, and are likely to regress in coming months.  In the worldwide EB-3 category for professionals, skilled and unskilled workers, the numbers moved forward only 3 weeks, and only 1 week for persons born in India.  The sole significant advance occurred in the EB-3 category for professionals and skilled workers born in mainland China where the numbers moved forward 8 weeks.

EMPLOYMENT CATEGORIES

See the entire visa bulletin including information about about the movement of the green card lottery numbers.

However, during the past week, I had the opportunity to talk to two different immigrants who are headed for immigration disaster because they relied on the legal advice of a paralegal rather than speaking with an attorney.

Immigration attorneys constantly warn potential clients about the dangers of hiring immigration consultants and notarios instead of hiring experienced attorneys.  However, the immigrants that I spoke to did hire law firms, but never got to speak with the attorneys.  All of their inquiries were routinely handled by paralegals.  Only when they were placed into removal proceedings before an Immigration Judge did the attorneys suddenly take an interest in their cases.

At that point, the immigrants took their business elsewhere.

Please don’t get me wrong.  In most immigration law firms, especially those which specialize in employment-based immigration, the majority of the day-to-day tasks are performed by paralegals.  For example, most of the H-1B, L-1, O-1 and P-1 petitions and PERM applications handled by our law firm are completed by paralegals.  And they do a great job.

However, they are supervised by attorneys.  And they know enough to refer any legal questions posed by a client to an attorney.

Regrettably, some immigration law firms instruct their paralegals to handle each case from beginning to end, and to respond to all client questions, and not to bother the attorneys.

This is a recipe for disaster, both for the client and for the law firm.  While most of our paralegals know far more about USCIS fees, procedures, LCAs and such than Yours Truly, they are not necessarily experts regarding complex legal questions involving section 245i, 245k, criminal convictions, CSPA, etc., etc.

That is where we instruct our paralegals to have our clients to talk one-to-one with an attorney.

This is not rocket science.  If you check into a hospital for heart surgery, you want to be operated on by a skilled heart surgeon, not by a registered nurse or a therapist.

The sooner immigrants demand to speak with an attorney when they have a legal question, the sooner the offending attorneys will get with the program.  After all, it is their responsibility, their license and their malpractice insurance.

And, of course, not all attorneys are created equal.  If you are looking for the best results in your immigration case, you should do some research before you hire a law firm to represent you.

A good place to start is by viewing our video, “How to Select an Immigration Attorney”.

It should be emphasized that each of these initiatives are still in the planning stage with no set date as to when they will become effective.

Quoting from the DHS announcement: “The initiatives described below will serve to make the United States more attractive to highly-skilled foreign students and workers, thereby improving the competitiveness of U.S. companies in the world market and stimulating U.S. job creation.”

1. Work Authorization for H-4s

The government is proposing to grant work authorization to some H-4 spouses.

Currently, H-4 spouses cannot obtain work authorization until a few months after they apply for adjustment of status.  Given the long wait in some of the employment-based categories, they are often prohibited from employment for several years.

In the future, they may qualify for work authorization after a PERM application is approved for the H-1B spouse, or when an I-140 is filed.

Stay tuned for details.

2. Work Authorization for H1-B1s and E-3s

Persons with H1-B1 visas (professionals admitted to the U.S. under Free Trade Agreements with Chile and Singapore) and E-3 visas (professionals who are citizens of Australia) are already allowed to work in the U.S.

Where the problem comes in is when they apply for an extension of stay.  H-1B professionals with pending extension applications are permitted to keep working for 240 days while their extension applications are pending.  H1-B1s and E-3s are not allowed to keep working in such circumstances for even 24 hours.  Ridiculous!

DHS plans to level the playing field a bit, but the question is when?

3. STEM OPT Extensions

In 2008, the USCIS began permitting some foreign-born graduates of U.S. universities to extend their work permits (also known as Optional Practical Training or “OPT”) for an additional 17 months if they fulfilled each of the following conditions:

• Currently participating in a 12-month period of approved post-completion OPT;
• Successfully completed a degree in science, technology, engineering, or mathematics (STEM) included in the DHS STEM Designated Degree Program List from a college or university certified by the U.S. Immigration and Customs Enforcement’s Student and Exchange Visitor Program;
• Working for a U.S. employer in a job directly related to the student’s major area of study;
• Working for, or accepted employment with, an employer enrolled in U.S. Citizenship and Immigration

Services’ E-Verify program; and

• Properly maintaining F-1 status.

Now, the DHS plans to expand the program slightly.  While the present program is limited to students whose most recent degree is in a STEM field, a past degree will soon suffice (e.g., an MBA with a B.S. in Computer Science).  Also, DHS plans to expand the STEM Designated Degree Program List.

In a related proposal, F-2 spouses of foreign-born students will be permitted to enroll part-time in academic courses.  The number of Designated School Officials will also be increased.

4. Outstanding Professors and Researchers

Currently, to be considered an outstanding professor or researcher for purposes of qualifying for permanent residence, the person must meet 2 of 6 criteria.

Comparable evidence is not accepted in this category although it is in the Extraordinary Ability category, and the USCIS has recently begun to issue an increased volume of requests for evidence and denials in this category.

Again, the DHS plans to level the playing field by allowing comparable evidence to be accepted for Outstanding Professors and Researchers.

5. Entrepreneurs in Residence Program

On February 22, USCIS officials will meet with academic, business and government leaders.  The aim of this program is to streamline procedures for deciding temporary benefit applications commonly utilized by foreign-born entrepreneurs.

CONCLUSION

In our view, these are steps, perhaps baby steps, in the right direction.  How significant these changes will be and when they will be implemented remains to be seen.

At least, those are the numbers which have emerged from the ICE pilot programs just completed in Denver and Baltimore. From early December until mid-January, 16 ICE attorneys reviewed 7,800 pending removal cases in Denver under the Morton Memo and determined that 1,300 should be administratively closed. That’s about 16% or 1 in 6.

Keep in mind that the fortunate 1 in 6 are not given green cards or even work permits. This is a long way from an “amnesty”. Only Congress can pass amnesty legislation, and to be perfectly frank, that possibility is about as remote as a U.S.-Iran mutual defense pact.

This is about as far as the Executive Branch of government can go without overstepping the prerogatives of Congress. In the eyes of some Republican leaders, it actually exceeds the powers of the Executive. However, prosecutorial discretion memos have occurred under both Republician and Democrat Administrations. Money is not infinite. Without a tax increase, our country has only enough resources to deport about 400,000 individuals out of the 11-12 million undocumented persons who live and work in the U.S.

What’s more is that we have only about 260 overworked Immigration Judges to hear 300,000 pending cases. Judges are now scheduling cases in 2014. This is great news if you are married to a green card holder who is able to naturalize before then. However, do we really want to live in a country where serious criminals and persons who are security threats are allowed to remain out on the street for years while they wait for their deportation hearings?

Policy implications aside, how does the new policy affect you if your case is currently before an Immigration Judge, or if your application for immigration benefits is denied by the USCIS?

Please be assured that even as you read these words, the Obama policy is spreading far beyond Denver and Baltimore and is going nationwide. Be patient. It is no easy task to review 300,000 cases. It will probably take the greater part of 2012 to do so. If the present odds are any indication of things to come, about 50,000 cases will be administratively closed.

Will you be one of the lucky 50,000?

Those whose cases at at the extremes are easiest to predict: If your parents brought you to the U.S. as a child, and you have never been convicted of a crime, the chances of having your case closed are excellent. Ditto if most of your family are legally in the U.S. Conversely, if you are a criminal, a frequent illegal border crosser, have committed immigration fraud or are thought to be a security threat, don’t hold your breath!

If your case falls somewhere between these extremes, you have little choice but to wait and see if the folks at ICE choose to exercise prosecutoral discretion in your case. While you are waiting, you and your immigration lawyer would be wise to browse through our prosecutorial discretion page.

At least, those are the numbers which have emerged from the ICE pilot programs just completed in Denver and Baltimore. From early December until mid-January, 16 ICE attorneys reviewed 7,800 pending removal cases in Denver under the Morton Memo and determined that 1,300 should be administratively closed. That’s about 16% or 1 in 6.

Keep in mind that the fortunate 1 in 6 are not given green cards or even work permits. This is a long way from an “amnesty”. Only Congress can pass amnesty legislation, and to be perfectly frank, that possibility is about as remote as a U.S.-Iran mutual defense pact.

This is about as far as the Executive Branch of government can go without overstepping the prerogatives of Congress. In the eyes of some Republican leaders, it actually exceeds the powers of the Executive. However, prosecutorial discretion memos have occurred under both Republician and Democrat Administrations. Money is not infinite. Without a tax increase, our country has only enough resources to deport about 400,000 individuals out of the 11-12 million undocumented persons who live and work in the U.S.

What’s more is that we have only about 260 overworked Immigration Judges to hear 300,000 pending cases. Judges are now scheduling cases in 2014. This is great news if you are married to a green card holder who is able to naturalize before then. However, do we really want to live in a country where serious criminals and persons who are security threats are allowed to remain out on the street for years while they wait for their deportation hearings?

Policy implications aside, how does the new policy affect you if your case is currently before an Immigration Judge, or if your application for immigration benefits is denied by the USCIS?

Please be assured that even as you read these words, the Obama policy is spreading far beyond Denver and Baltimore and is going nationwide. Be patient. It is no easy task to review 300,000 cases. It will probably take the greater part of 2012 to do so. If the present odds are any indication of things to come, about 50,000 cases will be administratively closed.

Will you be one of the lucky 50,000?

Those whose cases at at the extremes are easiest to predict: If your parents brought you to the U.S. as a child, and you have never been convicted of a crime, the chances of having your case closed are excellent. Ditto if most of your family are legally in the U.S. Conversely, if you are a criminal, a frequent illegal border crosser, have committed immigration fraud or are thought to be a security threat, don’t hold your breath!

If your case falls somewhere between these extremes, you have little choice but to wait and see if the folks at ICE choose to exercise prosecutoral discretion in your case. While you are waiting, you and your immigration lawyer would be wise to browse through our prosecutorial discretion page.

She had entered the U.S. over 10 years before on a K-1 fiancee visa filed by a U.S. citizen who she met on the Internet and who had traveled to her country to meet her.  Only when she arrived in the U.S. did she learn that he lived in his friend’s garage, and had only sponsored her in the hopes that she would support him for the rest of his life.

Within a few days, she left him and never saw him again.  The following year, she and another U.S. citizen fell in love and go married. They bought a house together, and she helped him run his neighborhood business.

Hoping to legalize the wife’s immigration status, the couple sought our advice.  Unfortunately, it is impossible for a person who enters the U.S. as a K-1 fiancee of a citizen to adjust their status in the U.S. through a marriage to another U.S. citizen.  To add insult to injury, if she choose to return to her country to apply for a green card, her previous unlawful presence in the U.S. would bar her from returning to the U.S. for 10 years.

They had taken advantage of a couple of “free consultations” offered by attorneys near where they lived, and the attorneys assured them that she would qualify for a “waiver” of the ten-year bar.  Just sign a contract, and give me a check, and I’ll take care of everything!

Aware of the adage that “if something appears too good to be true, perhaps it is”, they decided to seek a second, or accurately, a third opinion.  And as is all-too-often true, I became the bearer of bad news. 

I informed the couple that I would not take their case since there was nothing an attorney could do to help them.  A waiver of the 10-year bar required that the wife show “extreme hardship” to her U.S. husband.  True, they had been married for a number of years, and the emotional hardship which her husband would likely suffer would be tremendous. On the other hand, they had no children together, her husband was healthy and making plenty of money.  I very much doubted that the USCIS would find the hardship to the husband would meet the ”extreme” standard.  And what if her waiver were denied? She could appeal, but this would take a minimum of two years, and  the outcome would be tenuous at best.

The husband was upset.  The wife was in tears.  “But why did the other lawyers say we had a good case?”  Although the answer seemed all-too-obvious, all I did was shake my head and tell them how sorry I was for them.

Fast forward a few years.  The couple returns to our office.  Now, the husband is suffering from a debilitating disease.  Fortunately, the wife had medical training in her country, and with the help of some wonderful physicians, her husband was able to survive, but only with her constant care and attention.

On our website, they had read about a form of relief from deportation called cancellation of removal.  Would she qualify?  10 years physical presence in the U.S.?  Yes.  A person of good moral character?  Yes.  And would her husband suffer “extraordinary and extremely unusual hardship”? I asked them a number of questions, and then answered, yes.

They retained our law firm to represent them in Immigration Court.  Attorney Amy Prokop spent many hours documenting the hardship, and discovered many types of additional hardship beyond the husband’s medical condition. After Ms. Prokop appeared at the master calendar hearing, she was surprised to receive a call from the attorney for the government.  Based on the documents submitted, he was impressed by the showing of hardship.  No need to bring expert witnesses and medical experts to the hearing. If she and her husband simply testified as to the accuracy of the materials submitted, the government would stipulate to granting her a green card through cancellation of removal. 

Before the court date was reached, we prepared our clients for the merits hearing before the Immigration Judge.  On two separate afternoons, we went over the testimony with the couple.

Then, something unexpected and upsetting occurred.

A few days prior to the hearing, Attorney Prokop received a message from the government attorney.  A different Judge and a different government attorney had been assigned to the case.  Did the verbal agreement still hold?  Not clear.  We began preparing for the worst.

Not an early riser by nature, I booked a room at the Biltmore Hotel near the Immigration Court on the day before the hearing, and called the front desk to arrange for a wake-up call.  I needed to be at my best at the hearing early the next morning.

I spoke with the new government attorney prior to the hearing, and he seemed quite reasonable. I placed the wife on the witness stand.  Although quite nervous, she made an excellent witness. The preparation had paid off.  After I finished my direct examination, the Judge asked the government attorney if he had any questions.  No, he did not.

I moved to call the husband to the witness stand, but even before he entered the courtroom, the government attorney stipulated that we had met the “extraordinary and extremely unusual” hardship standard, and that the government agreed that our client had established eligibility for a green card through cancellation of removal.  The Immigration Judge granted the wife permanent residence, and the couple’s immigration saga had a very happy ending.

Only after the couple had left the courtroom, I reflected to myself, what would have happened if the wife had gone back to her country when her husband was still healthy and applied for a waiver?  Would the government have allowed her to return to the U.S. or would she have had to remain separated from her husband for 10 years?