Major development on immigration today, as reported by Julia Preston at the New York Times:
Obama administration officials announced on Friday that they will propose a fix to a notorious snag in immigration law that will spare hundreds of thousands of American citizens from prolonged separations from immigrant spouses and children.
The change that immigration officials are offering would benefit United States citizens who are married to or have children who are illegal immigrants. It would correct a bureaucratic Catch-22 that those Americans now confront when their spouses or children apply to become legal permanent residents.
So, what does this mean? America’s Voice Education Fund and American Immigration Lawyers Association explain.
In a notice in the Federal Register today, the government announced that they will be publishing a new regulation in the coming weeks that will direct certain visa applicants to file their applications for family unity waivers in the U.S. Currently, U.S. citizens and lawful permanent residents face unnecessary and dangerous bureaucratic hurdles in obtaining lawful permanent resident status for their spouse or child. They have to file a visa petition, and once the petition is approved and the visa appointment scheduled, the spouse or child has to travel to a U.S. consulate in their home country to be interviewed. Any needed waiver must be applied for while the applicant is waiting in the home country, and the decision on the waiver often takes weeks, months or even over a year to be completed. Meanwhile, families are separated and spouses and children are forced to wait in potentially dangerous situations until a waiver decision is made and then can complete their visa processing and return to the U.S. with their lawful permanent resident document (“green card”).
Today’s announcement is a limited, common sense processing change. Lawmakers who claim to like LEGAL immigration but abhor ILLEGAL immigration should embrace it. Government bureaucracy should not get in the way of family unity.
The new procedure will allow husbands, wives and children (under the age of 21) of U.S. citizens to remain united with their family members and spend only a short time in Ciudad Juarez or at another U.S. consulate abroad, where they will still have to go to have their final visa interview and obtain their lawful permanent resident status.
While the government announcement indicates that the new procedures will apply only to U.S. citizen family members when they go into effect, there is no valid reason not to extend the same processing to immediate family members of lawful permanent residents whose spouses and children face the same obstacles and dangers when required to wait abroad for their waiver adjudications.
Government bureaucracy shouldn’t stand in the way of keeping families together: The American people understand the importance and value of family unity. That’s why our immigration laws provide that U.S. citizens and lawful residents can apply for “green cards” for their foreign-born spouses and children and unite their families. But government bureaucracy has created decades-long backlogs and put up other obstacles that keep husbands, wives and children separated for years. One of these bureaucratic obstacles is the current waiver process that requires husbands, wives and children to wait outside the U.S. for weeks, months, or even years before getting a decision on their waiver application.
Stateside waiver processing is a rational solution to a simple problem: Waiver applications are often referred by U.S. consulates abroad back to DHS offices in the U.S. for adjudication. Processing these applications “stateside” in the first place will save consular resources abroad, allow U.S. consulates to focus staff resources on their core mission of serving U.S. citizens in foreign lands, and will allow a professional cadre of DHS staff in the U.S. develop the expertise to adjudicate cases and apply uniform legal standards to those adjudications.
Husbands, wives and children should not have to risk their lives to get their lawful visa: There is no rational reason to make a husband, wife or child of a U.S. citizen or lawful permanent resident wait for months in a dangerous place for lawful status for which they qualify. Tragic cases of family members being assaulted or killed as they await their waiver decision should never happen in our legal immigration system.
Removing unnecessary obstacles to family unity strengthens the fabric of U.S. society and benefits all Americans: Husbands, wives and adult children who are forced to remain separated from their loved ones for several months while waiting for a decision on their waiver application are not the only ones who suffer from this situation. U.S. citizen and lawful resident spouses and parents who wait for their loved ones to return are deprived of the help, care and income that often sustains them. And when the businesses and homes that are left behind cannot be sustained by those who remain in the U.S., entire communities suffer.
Under U.S. immigration law, U.S. citizen and lawful permanent residents can apply for lawful permanent resident status (a “green card”) for their spouse or child. While spouses and minor children of U.S. citizens are immediately eligible for their visa, the numbers of “green cards” issued each year to the spouses and children of lawful permanent residents are limited, so many of these family members are forced to wait in lengthy backlogs until their “priority date” becomes available and they can apply for their actual “green card.”
Spouses and children may be already living in the U.S. when their visa application is filed. But when their visa appointment is scheduled, or their “priority date” is finally reached, they must travel back to their home country to be interviewed for their “green card.” In a “Catch 22” of U.S. law, when they leave the U.S. to go to their visa appointment at a U.S. consulate, their departure triggers a provision of law known as the “3 and 10 year bar” which prevents them from returning to the U.S., even if their “green card” is approved, for up to 10 years.
Certain family members are eligible for a family unity waiver of the 3 and 10 year bar—those whose U.S. spouse or parent would suffer “extreme hardship” if they weren’t allowed to come back. In a further “Catch 22” however, these family members cannot even apply for the waiver until they are back in their home country. Mexican nationals, the majority of U.S. visa applicants, must travel to Ciudad Juarez to apply for a waiver at the U.S. consulate there. They must then wait, sometimes several months or even more than a year, for an answer. In 2009, 94,000 Mexican nationals applied for lawful permanent resident status in Ciudad Juarez.
Conditions in Ciudad Juarez are unbelievably dangerous. Well-documented violence has resulted in travel warnings from the United States itself. But family members have no choice but to go there if they have any hope of seeking a waiver and returning lawfully to the United States to live with their spouse or parent.
THE NEW PROCEDURE:
Given these conditions, DHS has decided to process waiver applications for certain family members of U.S. citizens here in the U.S. before the applicant has departed for their visa interview. With a provisionally approved waiver in hand, the family member can then complete their travel and visa appointment in a shorter time, and avoid having to wait in dangerous circumstances in Ciudad Juarez or other dangerous or unstable places in the world.
This new procedure does not change the legal standard for the family unity waiver. The applicant will still have to meet the burden of showing that a 3 or 10 year bar from the U.S. would cause their U.S. citizen spouse or parent “extreme hardship”.
ADDITIONAL BACKGROUND MATERIALS:
- Selected case examples of families who have suffered the hardships of the waiver system and illustrate the need for statewide processing of the family unity waiver