U.S. Department of Homeland Security (DHS) made the new year much brighter for many families through—of all things—a procedural change.
On the surface, the change doesn’t sound like much, affecting only where relatives of U.S. citizens apply for permanent residency; in other words, where they seek a green card. Thanks to the Jan. 3, 2013, final rule, immediate relatives of U.S. citizens no longer will face the prospect of months or years abroad seeking green cards. Instead, they may seek the waivers they need to obtain green cards while still in the United States with their families.
Getting a waiver stateside will dramatically shorten the length of time apart U.S. citizens have to spend from loved ones who came to the United States illegally or who overstayed their visas, according to Laura Lichter, president of the American Immigration Lawyers Association.
In a Jan. 3 interview, she called the current waiver program “a mess” that can lead to real heartbreak for “blended families,” a term for families that include U.S. citizens and noncitizens.
Small Change, Big Impact
To understand the trouble blended families face, consider how U.S. citizens currently proceed when they, rather than employers, sponsor someone for a green card. Immigration law is labyrinthine, but Lichter explained the current process citizens have to follow to bring family members:
• First, the U.S. citizen must prove he or she is a U.S. citizen and has the required relationship to the immigrant. Sponsorship occurs most frequently with spouses, and the couple has to prove that the marriage is real.
• After the U.S. Customs and Immigration Services (USCIS) gives its seal of approval, the citizen then has to deal with the National Visa Center at the U.S. Department of State, she said. This center is not part of USCIS, but provides application support for U.S consulates abroad and sets up an interview with the appropriate consulate.
• Next comes the interview at the U.S. consulate abroad, where the application for permanent residency may be accepted as admissible or denied for a host of reasons, including being in the United States illegally. There is a 10-year bar on re-entering the United States that is applied to an applicant for permanent residency who has lived in the U.S. unlawfully.
• Even if the U.S. consulate initially denies permanent residency, USCIS may grant a waiver from the denial in the case of extreme hardship. This last step can involve a long wait. In the past, family members of U.S. citizens have waited abroad for months and sometimes even years for the waiver. And there was no guarantee that a waiver would be granted.
Awaiting a waiver, family members are separated not only from their loved ones, but also their jobs, home and community with no way to return.
Meanwhile, the U.S. citizen remaining stateside would be saddled with all child care and household responsibilities during a spouse’s wait abroad for a waiver. Often, the U.S. citizen has to financially support the spouse that is abroad.
Under the new rule, which takes effect March 4, 2013, the spouse, child or parent of the U.S. citizen may apply for the waiver and wait until it is granted in the United States before traveling abroad for the interview at the U.S. consulate. This is a game changer.
Now instead of being stuck abroad for extended periods of time, which, for many, means awaiting a waiver in dangerous places such as Ciudad Juárez, Mexico, the spouses of U.S. citizens will just have to go abroad for the consulate meeting with waiver in hand.
Under the current system, Lichter, who practices immigration law in Denver, said she had one client who had been killed while waiting for the waiver. Lichter praised DHS for rolling out the new waiver program quickly, and said that if it goes well, it likely will be expanded to other groups in the future, such as family members of individuals with green cards.
Not All Sunshine and Roses
“The new rule isn’t perfect, and there are questions we hope to have answered before the rule goes into effect on March 4, but the agency has left the door open to improving the process to cover other types of cases if this initial rollout is successful,” Lichter remarked.
The rule is not popular with everyone. As Marketa Lindt, an attorney with Sidley Austin in Chicago, remarked, “Some people misunderstand the rule as providing special immigration status, work permits or other benefits to undocumented workers.” Lindt disagrees: “This is not true. The requirements for the process and for work authorization have not changed—the rule only provides a less burdensome and disruptive process for people who are already eligible for the benefits under the law.”
However, Maggie Murphy, an attorney with Jackson Lewis in Austin, Texas, commented, “Unfortunately, any time there is a proposed change in immigration law that will benefit those here illegally, employees who are working without proper authorization may come forward to request assistance in applying for the benefit, so that they can obtain legal status. In this situation, the employee will admit to being in the country illegally or in an unlawful status. If this is the case here, the HR professional would have actual knowledge that the employee is working without authorization, and because this rule provides no option for the foreign national to work or apply for work authorization in the U.S., the HR professional would be required to terminate the employee.”
Murphy said that she was surprised that DHS was making this change, rather than Congress.
“The administration simply sidestepped the legislature,” added Kevin Lashus, also an attorney at Jackson Lewis in Austin. “The Obama administration is effectively relegislating immigration enforcement priorities away from the traditional ‘removal’ operations to more of a ‘criminal removal’ and ‘homeland security’-related police function.”
Lindt said the new rule will ease an “extreme hardship to the U.S. spouse.” She put the change in context for HR, saying, “The benefit to employers is that their U.S. citizen employees who have foreign national spouses and other family members who are processing for permanent residence will be subjected to less stress and hardship as a result of the visa process. A process that eliminates lengthy separation of employees from their loved ones is clearly a benefit to employers as it translates to improvements in employee attendance, morale and productivity. Also, employees who themselves are applying for permanent residence will need to spend much less time abroad to complete the process,” making it easier to retain those employees.
Allen Smith, J.D., is manager, workplace law content, for SHRM.