National Immigration Forum

Practical Solutions for Immigrants and America


Editorial Board Memo: Family Unity Waivers

May 25, 2012

TO: Editorial Boards and Columnists
FROM: National Immigration Forum
RE: Obama Administration’s Proposed Changes to Immigration Waivers

Proposed Rule Keeps Families Together,
Encourages Legal Immigration

Public comment closes June 1 on a rule, proposed by the Obama administration, that will keep families together and provide a critical boost to legal immigration in the United States. We encourage you to support the proposed rule, but also to note specific ways in which it could be improved.

The proposed rule will allow U.S. citizens’ spouses and children who are eligible for a “green card” to file applications for family unity from within the U.S. These changes are good policy: They promote legal immigration and remove bureaucratic hurdles that keep families apart. But they should go further.

The Dilemma: Separate from Family vs. Live in the Shadows

Currently, immigrants who are eligible for legalization because they have a U.S. citizen spouse or parent must return to their home countries to be interviewed for their visa. Under current law, an immigrant who has been in the U.S. for more than six months without legal status is prohibited from returning for three years once he or she departs. Immigrants who have been in the U.S. for more than one year are barred from returning for ten years after departure.

This prohibition can be waived if an immigrant’s U.S.-citizen or permanent-resident spouse or parent would suffer extreme hardship, but only once the immigrant has left the country. The waiver decision can take months, during which immigrants are separated from their families and are stranded abroad. They also may have to wait in dangerous locales such as Ciudad Juarez, Mexico, “murder capital of the Americas.”

Many immigrants don’t take that chance. Instead, they remain in the U.S. with their families but also in the shadows of American society.

Strengthening Families, Our Communities and Our Country

The proposed rule would make it possible to apply for the waiver from within the United States, eliminating applicants’ risk of a mandatory decade-long exile from their families pending the waiver’s adjudication. This processing change would not undermine existing law. The standards for “extreme hardship” would be no less strict, but where such hardship is present, families would remain together until immigrants’ actual visa interviews in their home countries. Family separation would be far shorter — and far less risky.

Predictably, some Republicans have criticized this proposed processing modification as “amnesty.” However, the proposed rule only removes obstacles to legal immigration, which political leaders on both sides of the aisle say they support. This simple change to how a form is filed will end the quandary of choosing between separation and remaining in the U.S. without legal status for the families who will eventually benefit. Helping immigrants become more fully American, with all of the opportunities and responsibilities that entails, is no amnesty — it is smart policy that strengthens communities and our country.

Americans understand the importance of keeping families together, which is why our immigration laws allow U.S. citizens and permanent residents to apply for green cards for their foreign-born spouses and children. The proposed rule change is a chance for the Obama administration to demonstrate its commitment to family unity as well. In the long run, Congress and the administration must work together to remedy the bureaucracy and the backlogs that keep families apart.

How to Make a Good Rule Better

The comment period that ends June 1 is an opportunity not only to support the proposed changes but improve them. As written, the rule arbitrarily excludes the family members of U.S. legal permanent residents. Such individuals are legally eligible for the hardship waiver, and the hardships of lengthy family separation are as compelling for these families as for families of U.S. citizens. The proposed rule would keep still more families together were it to encompass the families of lawful permanent residents as well.

In addition, U.S. Citizenship and Immigration Services (USCIS) should establish clear guidelines for determining what qualifies as extreme hardship, and training on the standard. As it stands now, the standard is subjective, its application inconsistent.

Last but not least, the government, with the help of trusted media outlets, will need to ensure that information about the proposed rule change and its implications is accurate. Unfortunately, unscrupulous attorneys and “notarios” are already seeking to take advantage of desperate immigrants by spreading false information about the waiver process and this proposed rule. A strong public information campaign and outreach effort on the part of the government, and precise, careful coverage by mainstream media, will mitigate confusion and prevent misinformation.

In the end, this common-sense change in how waiver applications are processed will keep families together, make communities stronger, and remove obstacles to legal immigration. Such a policy should enjoy universal support.

For more information, see:

• Cases of families affected by this provision of law
• Announcement and FAQ from USCIS on the waiver processing change
• FAQ from the American Immigration Lawyers Association on the change
• Backgrounder from the Immigration Policy Center on the current system

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