May 2, 2012 10:41AM

Unlawful Presence Waivers Are Not Amnesty

Under current law unauthorized immigrant spouses or children of U.S. citizens can gain lawful permanent residency (LPR) status if they return to their home country to apply at a U.S. consulate or embassy. The Catch‐​22 is that unauthorized immigrants who have lived here are barred from returning for up to ten years once they leave the U.S. The immigrant has to apply for an unlawful presence waiver to remove the bar, a process that could take up to 28 months, including appeals, separating the immigrant from his U.S. family in the mean time. Consequently, many unauthorized immigrants who could regularize their status do not take this opportunity.

The government is now asking for comments on a proposed rule change that would close part of that administrative Catch‐​22. Under the proposed rule an unauthorized immigrant could apply for and adjudicate the waiver before departing for interviews in consulates abroad, shortening the separation time between the immigrant and his family. Half of waivers are approved in seven days at the American consulate in Ciudad Juarez, Mexico. The other half can take years.

The waiver removes the bar on returning if the immigrant can show that “being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative extreme hardship.” Extreme hardship only applies to the migrant’s U.S. citizen spouse or parent, not to the immigrant himself or his U.S.-citizen children. Extreme hardship is determined by USCIS bureaucrats where relevant factors include the intensity of family ties, health, age, financial impact, and country conditions. Financial problems and the normal hardship of familial separations are not, by themselves, sufficient reasons to grant a waiver.

Even with those strict legal requirements, thousands of people could have their immigration status legalized. The proposed rule change doesn’t go far enough. A better legislative change would remove the bar on reentry for unauthorized immigrants who are married to a U.S. citizen, obviating the need for a waiver entirely. Limiting it to spouses would not provide an incentive for unauthorized immigrants to have children in the U.S. to claim future LPR status through their children’s citizenship, not that there is a problem with that but some might object. This change would preserve the spirit and intent of our restrictive immigration laws while allowing many to regularize their status. Ted Alden of the Council on Foreign Relations thinks that up to a million unauthorized immigrants could regularize their immigration status if a rule change along those lines was proposed.

The government’s rule change is not an amnesty as some commentators claim. It would streamline a costly bureaucratic process for people who can already apply for LPR status and diminish the number of unauthorized immigrants without placing additional costs on the government. Sounds like a pretty good deal to me.