Jan 30, 2012 12:13 PM
On January 6, 2012 the U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security, posted a Notice of Intent in the Federal Register, aimed at reducing the time Americans are separated from their family members who are going through the process of becoming legal immigrants to the United States.
The Obama Administration thus proposed alleviating a situation that could spare hundreds of thousands of American citizens from extended separations from their illegal immigrant spouses and children. The proposed regulatory change would not alter existing immigration laws and would only apply in cases in which U.S. citizens would suffer extreme hardship as a result of prolonged family separation.
In announcing the notice of intent, the White House noted that while applicants would still need to go abroad to complete their legal immigration process, the proposed change would reduce the amount of time that American families are separated. Some spouses and children of U.S. citizens who are currently qualified to become permanent residents, but who have accrued a certain period of unlawful presence in the U.S., must travel abroad to file a request for a waiver of inadmissibility and to complete the immigration process.
This process can be lengthy and can result in U.S. citizens being separated from their family members for an extended period of time. This proposed regulatory change would not change existing immigration laws and would only apply in cases where U.S. citizens would suffer extreme hardship as a result of prolonged family separation. However, it would allow eligible spouses and children of U.S. citizens to apply for a provisional waiver before having to leave the U.S. to complete the legal immigration process.
While applicants would still need to go abroad to complete their legal immigration process, this proposal would significantly reduce the amount of time that American families are separated.
The New York Times reported that the announcement was being greeted with praise from immigration lawyers and immigrant and Latino groups that have been critical of the high rate of deportations under the Obama Administration. Based on their caseloads and census data, lawyers estimate that hundreds of thousands of Americans are married to illegal immigrants.
Significantly, from a political point of view, the proposed change is one of several measures by the administration that do not require approval by Congress. The decision is a reflection of the efforts of White House officials to find ways of shoring up sagging support for the President, especially among Latinos, during an election year.
Alejandro Mayorkas, Director of USCIS in the Department of Homeland Security (himself an immigrant from Cuba), stated that the purpose of the proposed regulatory change was to relieve the burden of citizens while streamlining a complicated and costly process. However, Mayorkas stressed that this step was only the beginning of a long process which the agency hopes to complete by issuing a new regulation by the end of the year.
Currently, American citizens are entitled to apply for green cards for their immigrant spouses and children, even those who entered the country illegally. However, they must return to their country of origin in order to receive the visa. Once immigrants leave the U.S. they are automatically barred from returning for at least three years and often more, even if they are eligible to become legal residents.
USCIS can provide a waiver from those bars if the immigrants can show that their absence would cause extreme hardship to a U.S. citizen. Heretofore, obtaining the waiver has been almost as difficult as getting the green card. Often waivers have not been approved, resulting in permanent separation between immigrants and their American families. Since the process of obtaining the green was so risky and complicated, many families simply resorted to living in hiding and not applying. Under the proposed change, illegal immigrants will be allowed to obtain a provisional waiver in the U.S. before leaving to pick up their visas. Thus, with a waiver in hand, they will be assured that they will be allowed to return. Agency officials are also attempting to reduce the waiting time for immigrants overseas to only a few weeks.
The Notice of Intent issued by the Department of Homeland Security (8CFR Part 212, RIN 11615-ZB10) is entitled “Provisional Waivers of Inadmissibility for Certain Immediate Relatives of U.S. Citizens” and was signed by Janet Napolitano, Secretary of Homeland Security. It aims to change the current process for filing and adjudication of certain applications for waivers of inadmissibility filed in connection with an immediate relative immigrant visa application. An “alien” would be able to obtain such a waiver only if Petition for Alien Relative is filed by a U.S. citizen on his or her behalf. The proposed new process anticipates reducing the movement of the case back and forth between the Department of State and USCIS, which currently prolongs the overall process and increases the time that American families are separated from each other.
