Update, 1:50 p.m.:
USCIS Director Alejandro Mayorkas said a proposed rule change that would ease restrictions on immigrants trying to get back into the U.S. after leaving would not affect current laws that determine who can apply for the waiver. The change would not allow illegal immigrants who are inadmissible due to criminal violations, but instead only those deemed inadmissible due to unlawful entry. An applicant must still prove that the separation would cause an extreme hardship to a U.S. citizen spouse or parent, however.
Under current law, individuals can only apply for a waiver once they leave the country and have a consular interview during which the Department of State determines the grounds of inadmissibility. The immigrants then seek a waiver on those grounds from USCIS.
“Current process is that case moves back and forth between the State Department, USCIS and the individual,” Mayorkas said.
The current proposal would allow the immigrant to apply for a waiver before departing the country. The USCIS will adjudicate that waiver and, if granted, the agency would issue a provisional waiver. The individual must still depart the country for the visa interview with the State Department, however. That agency must then confirm the inadmissibility is only due to unlawful presence before the waiver is finalized and the immigrant admitted. He said all applicants will undergo a background check and have their fingerprints checked against a criminal database to ensure they don't pose a threat to public safety.
“The period of separation is significantly reduced because that time that it takes USCIS to adjudicate the waiver would be accomplished before the individual has departed the United States,” he said.
Mayorkas said the proposal will be posted in the Federal Register today, which will be followed by a public comment period. He hopes the rule change will tale effect later this year.
The Obama administration is expected to announce today a change to immigration policies that would ease restrictions on illegal immigrants trying to reenter the country after applying for legal status.
The change, first reported by The New York Times, would allow the United States Citizen and Immigration Services, or USCIS, to give applicants provisional waivers here before they move back to their home countries to apply for legal status. The waivers would allow the applicants reentry during the application process.
“The goal is to substantially reduce the time that the U.S. citizen is separated from the spouse or child when that separation would yield an extreme hardship,” USCIS Director Alejandro Mayorkas told the Times.
Under the current rule immigrants who admit to being in the country illegally — what the government calls entering without inspection — and wish to apply for legal status must return to their country of origin and apply there. When they do that, they are barred from entering this country for a number of years. The same applies to immigrants who overstay a period of legal admission. An immigrant who has been in the United States illegally for more than 180 days but less than a year must wait three years before attempting reentry. That increases to 10 years if the illegal stay is longer than a year. Immigrant rights groups have said the policy separates families when spouses, children and siblings of legal residents or citizens are forced to leave the country for that extended period of time. Certain hardship exceptions are sometimes granted, but critics say that process is also lengthy and flawed.
The proposal comes as Democrats say obstructionist lawmakers from the right are hindering progress on the immigration front. It also comes as Obama, whose administration has deported a record number of immigrants, is losing support among Latinos. Analysts say whichever candidate wins the White House later this year must obtain the support of at least 40 percent of that demographic. According to the National Association of Latino Elected and Appointed Officials, the country now has an estimated 12.2 million projected Latino voters, an increase of about 26 percent from 2008’s figures. Texas is home to about 2 million of them.
The move has already drawn the the ire of top GOP lawmakers, who have balked at other recent proposals set forth by the Obama administration.
“President Obama and his administration are bending long established rules to put illegal immigrants ahead of the interests of American citizens and legal immigrants. This proposal from the Obama administration comes with no surprise considering their abuse of administrative powers," U.S. Rep. Lamar Smith, R-San Antonio, said in a statement this morning.
Smith, the chairman of the powerful House Judiciary Committee, has hurled a steady pattern of harsh rebukes toward the administration.
After last summer’s directive by Immigration and Customs Enforcement officials, which urged federal prosecutors to use “prosecutorial discretion” — taking into account factors like education, relatives who are U.S. citizens or who have served in the military, or whether the individual is a primary caretaker of someone who is ill — when determining which illegal immigrants to place in deportation proceedings, Smith filed legislation that would have limited the president’s immigration enforcement powers. The chairman said the move was an attempt by the president to grant “backdoor amnesty.” The administration said it was an attempt to focus the government’s limited resources on deporting criminal aliens that pose a threat to public safety.
That was followed by an announcement in August by the Department of Homeland Security that it would begin reviewing the case files of the estimated 300,000 illegal immigrants in deportation proceedings to determine which should be released from custody.
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