As reported extensively over the last two weeks, and in a way that was grossly misunderstood by the average person, the Obama administration plans to issue a regulation that would address a long-standing problem in immigration law—a Catch 22 created by requiring the spouses and children of U.S. citizens who entered the country unlawfully to depart the U.S. before completing the processing of their application for lawful permanent residence. The trouble is that once they leave the country, they are subject to a three or ten year bar for unlawful presence and need a waiver to get back into the US earlier than the 3 or 10 year bar would allow. The new proposal would allow them to submit the waiver application to the USCIS in the United States and receive a decision before departing the U.S., thus reducing the time, anxiety, and sometime danger inherent in waiting abroad for a decision.
This Catch-22 is one of the most notorious problems in the immigration system and the regulatory change is long-overdue. Due to processing backlogs, uncertainty of outcomes and violence in cities with key U.S. consulates—such as in Ciudad Juarez, Mexico—the prospect of becoming a lawful permanent resident has become an uncertain and frustrating affair for some applicants. Recognizing this problem, which arises in part from regulation, is an example of USCIS acting responsibly to address a problem of its own regulatory making in an expedient and lawful way.
The too good to be true part is that there is no change in the law yet, and we have not yet seen the actual wording of the proposed change. The truth is this rule change will not open the doors for more immigrants, or provide relief for the millions of undocumented immigrants in this country without the necessary family and work relationships to obtain status. Therefore, calling it “amnesty” is nothing short of a lie. No one who was not already eligible for a waiver is now eligible. This proposed rule will not affect anyone new.
The other too good to be true part is that we can not expect this change to take affect before the end of the year. The Rulemaking Process is SLOW. Even if we get a proposed rule issued in the Spring (a big “if”), given the required comment period, and intense desire of USCIS’s “culture of no” employees to slow down any real change that benefits immigrants, there is no conceivable way the change will happen before the election. And, if Obama loses in November, that will halt all pending changes in their tracks, and we will never see this common sense change take place.
What should you do? Do what you were doing. Do not make any changes in how you might have currently been processing for a waiver. Live your life. And, talk to an attorney if you are married to a US Citizen or permanent resident, or have Citizen or permanent resident parents. Perhaps you did not know that you already qualify for a waiver.