The Obama Administration announcement last week that it wants to allow some mixed immigration status families to remain together in the United States while they apply for hardship waivers was briefly turned into media debate fodder and then, apparently dropped because it is just too difficult to explain. But the few conservatives who cried foul, including Texas Republican Lamar Smith who wrote the 3- and 10-year bars into law in 1996, have very little ground to stand on here. As I reported last week, it has been in the works for a long time, it’s highly technical, it’s been suggested by multiple government and NGO reviews of the waiver process, it does not change any laws and it does not provide any new benefits for undocumented immigrants.
Houston immigration attorney Laurel Scott, who has written extensively about waivers, said the proposed rule actually improves compliance with the law. The waivers were originally intended to prevent the hardship of family separation, she said, and the proposed process would minimize the time that immigrant spouses and children of American citizens must spend abroad.
Still, the timing of the announcement and its provenance from the White House is clearly political and the pundits briefly made hay from this latest administrative decree. The moment in this news clip when CNN anchor Erin Burnett asserts to former American Immigration Lawyers Association president David Leopold that anyone who legitimately marries an American citizen can get a green card (then looks down, bites lip, blinks) highlights a huge problem for advocates of immigration reform.
Watch the clip at 2:12 for that moment:
Kris Kobach, the Kansas Secretary of State and crusading attorney who helped draft anti-immigrant legislation in Arizona and for state legislators across the country, skillfully puts the onus back on “illegal aliens, whether they decide to marry a U.S. citizen or not.” And Leopold is not quite able to counter what Moderator Burnett declares to be quite rational.
If the news that the Customs and Immigration Service will now process some “family unity” or family immigration waivers stateside accomplishes one thing, it should demonstrate to the American public once and for all that hundreds of thousands of American citizens have been living in the shadows with their undocumented spouses for the past decade.
Here’s the weird thing: Burnett is mostly right. Immigrants who marry U.S. citizens ARE generally eligible for a green card. Our national immigration system remains, technically, family friendly. BUT if they are in the United States illegally or face any of more than 60 different “inadmissibilities,” that green card may remain just out of reach.
There has been a lot of talk about this “catch-22” in the past week. USCIS puts it this way in the rule notice:The action required to regularize the status of an alien, departure from the United States, therefore is the very action that triggers the section 212(a)(9)(B)(i) inadmissibility that bars that alien from obtaining the immigrant visa.
Here it is in plain English: In order for an immigrant who entered the country illegally and then married an American citizen to get a green card, he or she has to leave the United States. But leaving triggers, in most cases, a 10-year ban (that Congress approved in 1996). To salve this catch-22, Congress crafted a series of pardons, or waivers, available for many, but they are complicated and time consuming and a bit risky to get. Applicants must show that if they are not granted a visa, their American citizen spouse or parent will suffer “extreme hardship.” Three quarters of the immigrants seeking waivers to enter the United States are from Mexico and require a visit to Ciudad Juarez, Mexico; I traveled there last January to see the process first hand.
Because these waivers are difficult to understand and a major financial and emotional and legal burden for many of the couples who need them the most, many, many couples choose to stay in the US, under the radar, rather than applying for green cards and facing the ban and subsequent waiver process.
Enter Candidate Obama. The USCIS is now proposing a tiny tweak in the process that could reassure many couples. They will be able to apply for the pardon BEFORE they leave the US to pick up their visa. This proposed rule (at this point it is still a notice of intent to publish a proposed rule) would provide provisional waivers to some couples so that when they return to the US Consulate or Embassy in their home country, they will be able to get the visa more quickly and efficiently and in fewer steps.
There are lots of waivers for lots of different violations. This rule change would apply to a VERY limited set: only people who “entered without inspection” and have a US citizen spouse or parent could get the provisional waiver. So if your fiancé is a citizen, you have to get married first and if your mom is a permanent resident, you won’t qualify for a provisional waiver.
Also, if you are like Nicole, whose husband has a permanent ban, and who is already living abroad, you won’t qualify. Bear in mind that the difference between a 3 year, 10 year and permanent ban is not that great. If you have been here illegally for 6-12 months, you get a 3-year-bar and if it’s more than a year you are barred for 10 years. In both cases you would be able to utilize the new provisional waiver before leaving the US to get an immigrant visa. But if you entered the US twice, say, after a trip home to see a sick grandparent or even to introduce your wife and kids to your family—even if not caught—you are banned permanently without an opportunity for a waiver. (In the case of this permanent bar, an immigrant may be able to reapply after waiting 10 years abroad, but only a few people have to tested this procedure to date.)
It is impossible to know how many couples in the US are currently eligible for a waiver of some type. Minneapolis immigration attorney Michael Davis said today that he’s gotten dozens of calls in the past week but many of the couples inquiring face a permanent ban and so the provisional waiver would not help them. Still, Davis thinks that processing the waivers in the US will encourage many couples to apply, once the new rule is finalized, which is supposed to be by the end of the year.
“I think it’s going to be an incentive for a lot of people to come out and do it,” he said.
In FY2011, USCIS received 23,262 I-601 waiver applications and approved 17,790, roughly a 76 percent approval rate. The approval rate in Ciudad Juarez was closer to 90 percent last year, according to a USCIS spokesman. More than 100,000 people have applied for waivers since 2006. But there are many more people out there who are unaware of the benefit or have been unwilling to take the risk and expense of applying.
One question that remains is what will happen to applicants who are denied a provisional waiver. They will still be in the United States without papers. On a USCIS stakeholders call yesterday, immigration officials did not answer this question, instead seeking suggestions from the public, but an FAQ on the USCIS site does adress the issue:
Q. What would happen to individuals who are denied waivers under the proposed process?
A.They would be subject to USCIS guidance and law enforcement priorities for issuing Notices to Appear (NTA). For example, convicted criminals, public safety threats, and those suspected of fraud will receive NTAs.
In other words, many of the people denied, if not priority cases for ICE, would just be back to square one—undocumented and married to Americans. But at least they would be with their families in the States rather than separated or forced to move under duress. Going into 10 months of political campaigning, I am glad that Obama is at least signaling a willingness to discuss the deep relationships that Americans have with the undocumented population. While families and family values are a fine starting point, I continue to hope that the candidates will examine their own relationships with migrants, with Mexico in particular and with our national stake in immigration reform.