Less Family Separation on the Road to Permanent Residency

Beginning March 4, the path to permanent residency for some undocumented immigrants will be eased thanks to a recent executive order from President Barack Obama. This change will allow immigrants who are applying for green cards to remain in the United States while they apply for their provisional unlawful presence waivers, the first step toward obtaining a green card.

Current legislation requires that for a legal resident’s undocumented spouse, immediate relative, or child under 21 years old to acquire a green card, they must return to their country of origin, apply for a provisional unlawful presence waiver, and wait there for the results. If approved for the waiver, they then attend immigrant visa interviews and are either awarded or denied a green card. If their waiver request is denied, and they are not given the opportunity to apply for a green card, they are barred from returning to the United States for three to 10 years in accordance with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

On average, 70 percent of green card applications are accepted and 30 percent are denied. Under the new rule, however, illegal immigrants can remain in the United States while they apply for a waiver, significantly decreasing the amount of time families are separated during the application process.

“[This] administrative change was initiated by President Obama and Homeland Security with the idea of trying to do something about the long wait and separation of families when one member who’s legal is trying to legalize a family member,” explained Santa Barbara immigration attorney Arnold Jaffe.

“The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this rule achieves,” Director of U.S. Citizenship and Immigration Services (USCIS) Alejandro Mayorkas said in a statement. “The change will have a significant impact on American families by greatly reducing the time family members are separated from those they rely upon.”

The new rule was proposed by the USCIS in April 2012, but the agency has since been making revisions and receiving public comments before it publishing the final guidelines about the reform in the Federal Register.

However, groups like Californians for Population Stabilization (CAPS), a Santa Barbara-based organization that advocates for immigration reform to preserve the environment and quality of life for people in the United States and around the world, disagree with Obama’s order, citing it as a way for him to take jobs away from legal American citizens who are already severely underemployed. “Obama’s move on immigration is really an unconstitutional disaster,” said CAPS board chair Marilyn DeYoung. “[Obama] is encouraging everyone to apply for these green cards because he believes that everyone should be able to have a work permit and take jobs away from the American people,” she went on.

When people are applying for green cards, they must note what hardships their family would experience during their absence, said Jaffe. That could mean loss of income, lack of care for a sick spouse or child, and so on. Other hardships, though, like simply longing for a loved one during an extended separation, are harder to articulate and document.

Abbe Kingston, a Santa Barbara attorney who also specializes in immigration law, praised the change in policy, as well. “It’s a subtle change, but it’s a significant one,” he said. “Who benefits from separating families? No one benefits. I think this is a logical law.”