The new rule, which the Department of Homeland Security will post for public comment Monday, would reduce the time illegal immigrants are separated from their American families while seeking legal status, immigration officials said. Currently, such immigrants must leave the country to apply for a legal visa, often leading to long stints away as they await resolution of their applications.
The proposal is the latest move by the administration to use its executive powers to revise immigration procedures without changing the law. It reflects an effort by President Obama to improve his standing among those Latino voters who feel he has not met his 2008 campaign promise to pursue comprehensive immigration reform.
The president`s push to pass the Dream Act, a law that would have created a path to citizenship for young illegal immigrants enrolled in college or enlisted in the military, was defeated in the Senate in December. No reform legislation has been under serious consideration since, yet the U.S. has deported a record number of illegal immigrants under Obama.
Many immigrants who might seek legal status do not pursue it out of fear they will not receive a “hardship waiver” of strict U.S. immigration laws: An illegal immigrant who has overstayed a visa for more than six months is barred from reentering the U.S. for three years; those who overstay more than a year are barred for 10 years.
Lisa Battan, an immigration attorney based in Boulder, Colo., said the current process is “encouraging people to remain illegal.”
The revised rule would allow illegal immigrants to claim that time apart from a spouse, child or parent who is a U.S. citizen would create “extreme hardship,” and would permit them to remain in the country as they apply for legal status. Once approved, applicants would be required to leave the U.S. briefly, simply to return to their native country and pick up their visa.
The change could reduce a family`s time apart to one week in some cases, officials said. The White House hopes to have the new procedures in place by the end of the year.
David Leopold, a Cleveland attorney and past president of the American Immigration Lawyers Assn., said the change was a “minor processing tweak, but it has great value to families.”
Hundreds of thousands of the estimated 2.5 million illegal immigrants in California could benefit from the proposed change, according to immigration activists.
Republicans accused Obama of making an end run around Congress.
“President Obama and his administration are bending long-established rules to grant backdoor amnesty to potentially millions of illegal immigrants,” Lamar Smith (R-Texas) said in a statement Friday.
U.S. immigration officials counter that the revision affects only how the applications are processed, not whether the legal status ultimately is granted.
“I don`t think that criticism is warranted at all,” said Alejandro Mayorkas, director of U.S. Citizenship and Immigration Services. “What we are doing is reducing the time of separation, not changing the standard of obtaining a waiver.”
That the proposal is being announced in an election year has a whiff of political calculation, said Javier Ortiz, a Republican strategist.
“It looks like the president is pandering to Hispanic voters,” said Ortiz, asserting that Obama could have proposed the change three years ago when he took office. “I would argue that Hispanics are smarter than that, and they know he has failed to bring forward comprehensive immigration reform.”
The White House has previously made other administrative changes, such as a policy announced in June that gave prosecutors new authority to put on hold cases against immigration violators who have strong ties to the U.S. and no criminal record. The “discretion policy” encouraged immigration agents to focus on the removal of illegal immigrants who pose a threat to public safety or are repeat immigration law violators.
A program intended to cull so-called “low priority” cases from immigration courts began in Denver and Baltimore early this year and is being expanded to six other cities across the U.S. over the next four months, including Los Angeles and San Francisco.
The more-targeted approach hasn`t reduced the total number of people being deported annually from the U.S. Last year, 396,906 people were deported, a record number for the third consecutive year, and many of the deportees were relatives of U.S. citizens. In the first half of last year alone, immigration officials deported more than 46,000 parents of U.S. citizens, according to U.S. Immigration and Customs Enforcement.
For some immigrants, the danger of returning to their home country for a long period discourages them from seeking legal status. Mexican nationals are required by the State Department to apply for their hardship waivers at the U.S. consulate in Juarez, Mexico, a city plagued by drug cartel violence that saw about 2,000 homicides in 2011.
Abel Aguirre de la Cruz and his wife, Jessica Martinez, a U.S. citizen, were carjacked at gunpoint with their infant child in November 2010 in Fresnillo, Mexico, while going through the waiver application process, according to Battan, the Colorado-based lawyer, who represents the couple. On March 15, 20 months after the family first applied for a waiver, the consulate in Juarez requested more information.
After the administration`s new proposal is posted in the Federal Register on Monday, the public will have 60 days to critique the change.
