A proposed change to a law governing how illegal immigrant spouses and children of U.S. citizens apply for legal status could allow thousands of families to stay together during the application process.
While mixed-status families and their advocates see hope in the planned amendment, critics consider it an attempt by the Obama administration to make life in the U.S. easier for illegal immigrants.
Currently, undocumented spouses and family members must return to their native country and apply for a visa to enter the U.S. legally. Once out of the United States, many applicants can be barred from returning for up to a decade because they had lived in the U.S. without permission. Waivers exist for people who can prove extreme hardship, but they must be filed in the individuals’ home countries and can take months or years to process.
The planned change, outlined in the Federal Register, would allow undocumented immigrants to apply for the waiver while still in the U.S. Applicants would only return to their birth country — for a few days or weeks — when it’s time for an in-person visa interview, according to U.S. Citizenship and Immigration Services.
The aim is to benefit U.S. citizens and limit the amount of time family members are separated by the bureaucratic process, said agency director Alejandro Mayorkas. If adopted, the new rule could go into effect by the end of the year. It would not be retroactive.
Conservatives consider the proposal an unfair administrative maneuver that sidesteps Congress.
“This is just another attempt by the administration to make it easier for illegal immigrants to stay in the U.S.,” said Joe Kasper, spokesman for Rep. Duncan Hunter, R-Alpine. “What’s most ironic about this change is that the administration has been complaining about the backlog of immigration cases and is expediting proceedings and providing amnesty where it can, and now it’s contributing to the backlog.”
Another prominent critic is Rep. Lamar Smith, R-Texas. He wrote legislation in 1996 banning people who have lived illegally in the U.S. from coming back legally for three or 10 years, depending on their previous immigration violations.
Officials at the citizenship agency said the criteria for determining who qualifies for an extreme-hardship waiver will remain the same. The only difference is where a person waits out the process.
It’s unclear how many people might benefit from the change. Immigration attorneys said thousands may come forward if they are able to stay together while seeking a waiver.
The citizenship agency received 23,262 waiver applications last year and 17,790 were approved. Of all the applications, about 74 percent were filed from Mexico.
The modified regulation would apply only to illegal immigrant spouses and children because they lacked permission to be in the U.S. in the first place. So they need to go back to their native country to legally obtain a visa and a waiver.
People who originally entered the United States legally, even if they overstayed their visas, are allowed to complete the process from here.
Prolonged wait times — and thus family separation — have concerned immigrant advocates, who said it is a de-facto trap that leads to major stresses including the loss of a wage earner, home foreclosure and sometimes homelessness for the U.S. citizen and his or her children remaining in the U.S.