How immigrants are redefining 'American' in Southern California

Is the proposed hardship waiver rule change 'amnesty?' Not quite - here's how it works

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Mexican soldiers guard one of the entrances in July 2010 to the U.S. consulate in Ciudad Juarez, Mexico, where Mexican nationals married to U.S. citizens are typically sent to apply for visas to return legally. Under current rules, many get stuck there long-term.

The director of U.S. Citizenship and Immigration Services held a press conference today to address criticism that a proposed administrative tweak to how some people apply for green cards is "amnesty," as some critics of the proposal have charged.

The background: The agency has published a proposed rule change in the Federal Register that would change the way in which undocumented immigrants seeking a waiver of inadmissibility in order to obtain a green card - typically people married to U.S. citizens - apply for one. Most immigrants in this position currently have to leave the country to apply, leaving many stuck abroad indefinitely.

The rule change, which could become effective by the end of this year, would let them apply while in the United States. Here's how the waiver process works and how the proposed change would affect it, from a post earlier this year:

The proposal...affects people who are applying for a waiver to the three- or ten-year re-entry bar for those who have been living in the U.S. illegally, but wish to adjust their status through immediate family. The existing rule – one that won’t change – is that most undocumented spouses and children of U.S. citizens who apply for a green card must return to their native countries to be processed, allowing them to then return legally.

But there’s a major catch. Once they leave, depending on how long they’ve been in the U.S. illegally, they can be barred from returning for up to a decade. The solution for some is to prove that the absence will cause “extreme hardship” to a citizen spouse. If they can, a waiver can be obtained to let them return sooner. But these waivers are difficult to obtain, making for long waits. If it’s not granted, the person waiting abroad can be stranded there for years, separated from loved ones and potentially draining the family’s resources. Even those who do eventually obtain waivers typically find themselves stuck abroad long-term, as they take months to process.

The proposed rule change would allow those seeking a hardship waiver to do so on U.S. soil, meaning they would know before they leave the country if they are approved. The idea would be, then, that people travel abroad to get their visas with a provisional waiver in hand, allowing them to return unimpeded within a few weeks and sparing them the prospect of getting stuck.

Those who do get stuck and can’t get a waiver to return are in for a long wait: Current immigration law punishes people who have been living in the U.S. illegally for at least six months with a readmission ban of three years. If they’ve been here illegally more than a year, they can’t come back legally for a decade.

The change wouldn't make it any easier to obtain a hardship waiver, granted only to about 17,000 people last year, and it doesn't amend existing immigration laws.

That said, the rule change could encourage more members of mixed-status families to apply for legal resident status. From today's story by KPCC's Kitty Felde:

Mayorkas says few people have applied for the waiver because, if they’re turned down, they could be barred from re-entering the U.S. for up to 10 years. "The risk of separation is so dramatic, people who might be eligible do not take the risk of leaving the country and applying."

Mayorkas also warned of "notario fraud" from unscrupulous individuals who prey on immigrants, who may tell them that the rule is already in effect as part of a scam.

For the fine print as to how the rule would apply in real life, read this informative Q&A with David Leopold, former president of the American Immigration Lawyers Association.

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