New York Daily News (Opinion by Allan Wernick): The Obama administration has proposed letting certain relatives of U.S. citizens apply for an “unlawful presence” waiver while in the United States. If the proposed rule becomes law, thousands of undocumented immigrants here will find an easier path to permanent residence.
Regular readers of this column know that the unlawful presence bar to permanent residence applies to most individuals who leave the United States after having been here illegally for more than 180 days. Current law allows the U.S. Citizenship and Immigration Services to waive the bar. However, you can’t apply for the waiver until you are already abroad. If the USCIS denies the waiver, you could be stuck abroad for years. Under the proposed rule, some applicants applying as an “immediate relative” of a U.S. citizen may apply for the waiver without leaving the United States. The immediate relative category includes the spouse of a U.S. citizen, the unmarried child under 21 of a U.S. citizen and the parent of a U.S. citizen who is at least age 21. To apply while here under the rule, the applicant must prove extreme hardship to a U.S. citizen parent or spouse.
The unlawful presence bar to permanent residence was added to our immigration laws in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act. It created a three-year bar to permanent residence for individuals who left that United States after having been unlawfully present here for more than 180 days. The bar is ten years for those unlawfully present one year or more. For undocumented immigrants who can interview here - the process called “adjustment of status” - the bar doesn't apply. It’s those who must interview abroad who will benefit from the proposed rule.
An applicant subject to the three or ten-year bar can travel home for an interview at a U.S. consulate and then apply for a waiver. The applicant must prove that separation from a U.S. citizen or permanent resident spouse or parent would cause that relative extreme hardship. Getting a waiver can take up to a year. And, if the USCIS denies the waiver application, the applicant is stuck abroad. If the proposed regulation becomes law, a qualified applicant can get the waiver while in the United States. Then, assuming no other bars to permanent residence apply, the applicant could travel to an immigrant visa interview at a U.S. consulate confident of getting their visas within days.
The unlawful presence bar, no matter how it is implemented, makes no sense. Its proponents argued that the bar would encourage undocumented immigrants to leave before being here unlawfully more than 180 days. Instead, it encouraged them to stay here illegally knowing the risks of applying for an immigrant visa while abroad. A law designed to drive them out, ended up fencing them in.
The largest group who will benefit from the proposed rule will be the thousands of husbands and wives of U.S. citizens who entered illegally. With a lawful inspection and admission - for instance, as a B-2 visitor, an undocumented immigrant married to a U.S. citizen can interview here and avoid the bar. But for those who entered illegally, especially those who snuck across the Mexican or Canadian border, the proposed rule will give them a chance to get permanent residence without risking a long separation from their families.
Also benefitting from the new rule will immediate relatives of U.S. citizens who entered as C or D visa crew members and individuals admitted for a short time in transit without visas (TROVs). Crew members and TROVs cannot interview here despite a lawful entry.
Even under the new rule, waivers are not guaranteed. USCIS says it will not change its waiver criteria. My bet is that deciding the waivers while applicants are here will result in a more generous waiver policy. Immigrants’ rights activists will follow USCIS implementation of the new rule carefully, pushing for fair adjudications.
Note that we are discussing a proposed rule that could take months to become law. We are likely to see a debate over whether the change will “reward” undocumented immigrants. Already some anti-immigrant restrictionists are calling the proposed rule an amnesty. The opponents fail to mention that the change is procedural, creating no new rights. The USCIS already allows individuals facing other bars to permanent residence to apply for waivers here, including individuals previously ordered deported.
While I applaud the President for taking this important step, the proposed rule is far too limited. Many relatives of U.S. citizens - married children and those 21 or over, can’t benefit. Nor can the spouse and unmarried children of permanent residents or needed workers. These individuals will remain trapped here - qualified for a green card but afraid to go home to get it.
The current rule is a leftover from the Clinton and Bush administrations. More than a year ago I called upon Obama to change it. Let’s hope he does so quickly.
Regular readers of this column know that the unlawful presence bar to permanent residence applies to most individuals who leave the United States after having been here illegally for more than 180 days. Current law allows the U.S. Citizenship and Immigration Services to waive the bar. However, you can’t apply for the waiver until you are already abroad. If the USCIS denies the waiver, you could be stuck abroad for years. Under the proposed rule, some applicants applying as an “immediate relative” of a U.S. citizen may apply for the waiver without leaving the United States. The immediate relative category includes the spouse of a U.S. citizen, the unmarried child under 21 of a U.S. citizen and the parent of a U.S. citizen who is at least age 21. To apply while here under the rule, the applicant must prove extreme hardship to a U.S. citizen parent or spouse.
The unlawful presence bar to permanent residence was added to our immigration laws in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act. It created a three-year bar to permanent residence for individuals who left that United States after having been unlawfully present here for more than 180 days. The bar is ten years for those unlawfully present one year or more. For undocumented immigrants who can interview here - the process called “adjustment of status” - the bar doesn't apply. It’s those who must interview abroad who will benefit from the proposed rule.
An applicant subject to the three or ten-year bar can travel home for an interview at a U.S. consulate and then apply for a waiver. The applicant must prove that separation from a U.S. citizen or permanent resident spouse or parent would cause that relative extreme hardship. Getting a waiver can take up to a year. And, if the USCIS denies the waiver application, the applicant is stuck abroad. If the proposed regulation becomes law, a qualified applicant can get the waiver while in the United States. Then, assuming no other bars to permanent residence apply, the applicant could travel to an immigrant visa interview at a U.S. consulate confident of getting their visas within days.
The unlawful presence bar, no matter how it is implemented, makes no sense. Its proponents argued that the bar would encourage undocumented immigrants to leave before being here unlawfully more than 180 days. Instead, it encouraged them to stay here illegally knowing the risks of applying for an immigrant visa while abroad. A law designed to drive them out, ended up fencing them in.
The largest group who will benefit from the proposed rule will be the thousands of husbands and wives of U.S. citizens who entered illegally. With a lawful inspection and admission - for instance, as a B-2 visitor, an undocumented immigrant married to a U.S. citizen can interview here and avoid the bar. But for those who entered illegally, especially those who snuck across the Mexican or Canadian border, the proposed rule will give them a chance to get permanent residence without risking a long separation from their families.
Also benefitting from the new rule will immediate relatives of U.S. citizens who entered as C or D visa crew members and individuals admitted for a short time in transit without visas (TROVs). Crew members and TROVs cannot interview here despite a lawful entry.
Even under the new rule, waivers are not guaranteed. USCIS says it will not change its waiver criteria. My bet is that deciding the waivers while applicants are here will result in a more generous waiver policy. Immigrants’ rights activists will follow USCIS implementation of the new rule carefully, pushing for fair adjudications.
Note that we are discussing a proposed rule that could take months to become law. We are likely to see a debate over whether the change will “reward” undocumented immigrants. Already some anti-immigrant restrictionists are calling the proposed rule an amnesty. The opponents fail to mention that the change is procedural, creating no new rights. The USCIS already allows individuals facing other bars to permanent residence to apply for waivers here, including individuals previously ordered deported.
While I applaud the President for taking this important step, the proposed rule is far too limited. Many relatives of U.S. citizens - married children and those 21 or over, can’t benefit. Nor can the spouse and unmarried children of permanent residents or needed workers. These individuals will remain trapped here - qualified for a green card but afraid to go home to get it.
The current rule is a leftover from the Clinton and Bush administrations. More than a year ago I called upon Obama to change it. Let’s hope he does so quickly.
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