New Immigration Policy Aims To Limit Family Separation
January 02, 2013

Photo by Jude Joffe-Block
The intention of the new rule is to limit family separations during the immigration process.

PHOENIX -- Federal authorities announced a new policy Monday to help some families stay together during the immigration process.

The change addresses the fact that some undocumented immigrants who marry U.S. citizens, or have parents or children who are U.S. citizens, face a dilemma when it comes to legalizing their own status.

Under certain conditions, the only way these immigrants can gain a green card through their U.S. citizen relative is to go back to their home country, and apply at a U.S. consulate office from there. But once these immigrants leave the country, they can be barred from coming back in for years.

If they can prove separation from a U.S. citizen family member will cause extreme hardship, they can get a waiver to come back sooner, but it still takes several months.

The new Department of Homeland Security rule, which is set to be published to the federal register on Jan. 3 and takes effect in early March, seeks to reduce that family separation by allowing immigrants to apply for those hardship waivers from the U.S.

“This new process facilitates the legal immigration process and reduces long periods of separation between U.S. citizens and their immediate relatives,” said U.S. Citizenship and Immigration Services Director Alejandro Mayorkas in a media conference call.

Under the new rule, this category of green card applicant would still have to travel to their home country to apply, but their time away would be reduced from months to weeks.

Mayorkas said he does expects this change will increase the number of applications for green cards and hardship waivers, but he did not have an estimate by how much. He said his agency would monitor the flow of applications received to determine if additional staffing will be necessary.

In the past few years, between 22,000 and 25,000 immigrants have applied on a yearly basis for these hardship waivers from abroad. Last year, 88 percent of applicants were granted a waiver.

The number of past applicants suggest that tens of thousands of families could stand to benefit from the rule change.

The change to the rule was formally proposed in April 2012, and was open to public comment.

While some immigrant advocates had suggested in those comments the rule should be expanded to include the relatives of legal permanent residents and other categories of immigrants, DHS did not rule out such a possibility in the future.

The text of the rule states: "After assessing the effectiveness of the new provisional unlawful presence waiver process and its operational impact, DHS, in consultation with DOS and other affected agencies, will consider expanding the provisional unlawful presence waiver process to other categories."