After a year or more of quiet planning, the Obama Administration will announce today that it intends to process immigrant hardship waivers within the U.S., allowing many more undocumented immigrants with U.S. citizen spouses and parents to apply without risking the immigration bars that have plagued hundreds of thousands of families since 1997.
Julia Preston at the New York Times broke the story early Friday morning, quoting Alejandro Mayorkas, director of U.S. Citizenship and Immigration Services, the agency that handles waiver requests: “The goal is to substantially reduce the time that the U.S. citizen is separated from the spouse or child when that separation would yield an extreme hardship.”
The changes are not immediate and will have to undergo a year-long rule making process, according to the Times. They may also be subject to significant political and Congressional push back during the coming year.
The waiver process has been a major element of my reporting for Amor and Exile, and I have been hearing hints of this change for about a year now, though the Administration kept it under tight wraps. In January 2011, I visited the U.S. Consulate in Ciudad Juarez, Mexico where 75 percent of all of these waivers are processed and officials there hinted that USCIS was working on a plan to consolidate some of its international operations within the United States.
In August I had discussions with congressional staff on Capitol Hill who told me that the Congressional Hispanic Caucus had been pressuring Obama to make this change.
More recently I learned that things had been changing in Juarez since I visited a year ago. Much of the USCIS staff had left for posts in the U.S. and immigration attorneys in the U.S. were noticing the wait times growing and some degree of disorganization in processing hardship waivers. USCIS announced a conference call on October 14 to explain a new procedure for people wishing to file their I-601s, or hardship waivers, in which they would send the application to a service center in the United States rather than filing at a foreign consulate or embassy. But on the same afternoon that it was scheduled, the conference call was suddenly canceled, even as attorneys waited for the call to begin. It was never rescheduled.
The expected announcement Friday in the Federal Register signals the administration’s intention to allow immigrants to apply for the I-601 hardship waiver from within the United States, rather than forcing them to leave the country first, which triggers 3-year, 10-year and even permanent bars from re-entering, and presents a high risk for many families who may otherwise qualify. The new policy, once approved, would provide more assurance that an applicant qualified for the waiver before he or she left the country to pick up the visa. It could help out many mixed immigration status families who qualify for waivers but have been afraid to leave the U.S. in order to apply.
According to the New York Times:
The journey toward the green card to which they were entitled was so fraught with risks for the illegal immigrants that many families simply decided to live in hiding and not apply.
Now, Citizenship and Immigration Services proposes to allow the immigrants to obtain a provisional waiver in the United States, before they leave for their countries to pick up their visas. Having the waiver in hand will allow them to depart knowing that they will almost certainly be able to return, officials said. The agency is also seeking to sharply streamline the process to cut down the wait times for visas to a few weeks at most.
I have not seen the language of the Federal Register notice (it does not appear to be posted as of 3 am EST Friday) nor have I spoken to anyone since seeing the New York Times article on Twitter just now, but there are a few major questions about this policy that come to mind.
- Will it further define “extreme hardship?” Up to now, the immigrant seeking a waiver has to show that their American citizen or permanent resident spouse (or fiancé/fiancée) would suffer extreme hardship if they were not granted a visa. But that hardship is not very well defined and is largely up to the discretion of the official reviewing the case. For example, having American children together or being forced to live apart from a spouse is not considered a hardship.
- What about couples who do not currently qualify for a waiver? Common immigration violations like re-entering the country after a deportation or even just a quick trip home disqualify many people for the waiver. Many of the families who have avoided the waiver process and remained in the shadows may still not qualify for this new program.
- What will happen to families who are denied the provisional waiver under the new process? Will they face immediate deportation?
I will try to get some answers to these questions soon. [UPDATED post here.]
In the meantime, the news gives new hope to many families. From the New York Times story:
“Yay!” said Nancy Kuznetsov, an American citizen and immigration advocate who was separated for more than four years from her husband, Vitali, from Belarus. Ms. Kuznetsov has battled for years for the waiver fix.
“This is a wonderful humane change that recognizes the importance of American citizens,” said Ms. Kuznetsov, vice president of American Families United, an organization of Americans facing struggles with the immigration system.