Earlier this month, the Department of Homeland Security (DHS) issued a rule that will make it easier—and more predictable—for some immediate family members of U.S. citizens to obtain permanent residence in the United States. The new rule is intended to remedy the consequences of a 1996 immigration law that can potentially separate U.S. citizens from their sponsored relatives for years while their applications for permanent residence are being processed.
The rule, first proposed in April 2012 and which goes into effect on March 4, is the latest move by the Obama administration to use its executive powers to revise immigration procedures without congressional action. Other examples of the use of this executive authority include the Deferred Action for Childhood Arrivals (DACA) program, announced last June, and the exercise of prosecutorial discretion in immigration removal actions. The new rule will benefit a sizeable number of the estimated 11 million unauthorized immigrants in the country.
Under current law, U.S. citizens can sponsor their immediate relatives (parents, children, and spouses) for lawful permanent residence (green cards). However, barring few exceptions, sponsored relatives who entered the country illegally are ineligible to receive their permanent visas in the United States, and can only obtain them at consular posts abroad—typically in their country of birth. Under the 1996 law, anyone who leaves the United States after residing illegally for one year or more is barred from reentering the country for ten years, even when departure is for the purpose of attending a consular interview. Individuals who leave the country after residing illegally for more than six months are similarly barred for three years.
Current law allows DHS to waive the three- and ten-year bars to reentry if applicants establish that the refusal of their admission to the United States would cause “extreme hardship” to a U.S. citizen or lawful permanent resident (LPR) spouse or parent. Under current rules, applicants are only allowed to file unlawful presence waivers after they have already left the United States. As a result, such applicants leave the country not knowing whether their waiver application will be granted and whether they will be allowed to return. Even when waiver applications are granted, their adjudication may take months, or even years.
The new rule aims to shorten the period of time that waiver applicants must spend abroad, and provide predictability in the application process. Immediate relatives of U.S. citizens are now able to apply for and receive “provisional waivers” of the unlawful presence bar while they are still in the United States. To qualify for a provisional waiver under the new rule, a noncitizen must demonstrate that he or she is currently residing in the United States, is at least 17 years old, and that U.S. Citizenship and Immigration Services (USCIS) has approved an initial immigrant sponsorship petition filed on his or her behalf by a U.S. citizen spouse, parent, or child.
Most importantly, the noncitizen must demonstrate that the permanent separation that would result if the waiver were not approved would cause extreme hardship to his or her U.S. citizen spouse or parent. In determining whether the applicant has met the extreme hardship criteria, adjudicators generally consider the potential financial, emotional, and medical impacts of the noncitizen's departure, as well as the connections of the noncitizen and his or her qualifying relative to both the United States and the noncitizen's country of origin. Although the spouses and children of LPRs may also apply for extreme hardship waivers under current law, the new rule will not apply to them.
Waiver Approval and Denial
In recent years, a significant portion of extreme hardship waivers has been approved. During fiscal year (FY) 2011, the USCIS Refugee, Asylum, and International Operations Directorate, which oversees the adjudication of such waivers, reported that each of its three districts abroad had at least a 50 percent waiver approval rate, though the rates varied significantly by district. Half of adjudicated waiver cases were approved in the Rome district, which covers Europe, Russia, the Middle East, and Africa, while a slightly higher percentage (54 percent) of cases adjudicated were approved in the Bangkok district, which covers Asia, Australia, and the Pacific islands. In contrast, the Mexico district, which covers the Americas, reported an 84 percent approval rate.
Those familiar with the unlawful waiver process have long speculated that far fewer noncitizens apply than are qualified to apply. This is attributed both to the risk involved in a denial of these waiver applications and to the time that it takes to adjudicate them.
The new rule aims to address both of these factors. It takes some of the uncertainty out of the waiver process because applicants whose provisional waivers are approved will generally automatically be granted formal waiver approvals. Notably, the rule also allows beneficiaries to remain in the United States while their provisional waiver applications are adjudicated. While applicants granted provisional waivers will still have to attend their visa interviews abroad, the new rule is designed to significantly reduce the time they must spend abroad - from months or years down to days or weeks.
Under the new rule, noncitizens who previously were in removal proceedings may apply for these waivers, so long as their removal proceedings have been administratively closed by the immigration court. Applicants whose initial provisional waiver applications are denied may refile.
Significantly, the new rule outlines how DHS will treat noncitizens whose applications for provisional waivers are denied. According to the rule, such individuals will only be referred for removal proceedings if they fall within one of USCIS' priority categories, for example, criminal aliens, individuals who have committed immigration fraud, and those who pose a threat to national security.
Scope and Further Impacts of the New Rule
It is difficult to accurately predict how many people will benefit from the policy change, both because DHS lacks data on the number of unauthorized immigrants with U.S. citizen spouses and parents and because current immigration law allows some unauthorized immigrants who would otherwise require unlawful presence waivers to apply for legal status inside the United States. Nevertheless, DHS anticipates that the new rule will lead to a marked increase in demand for these waivers. In the official explanation accompanying the rule, DHS estimates that up to 296,000 additional waivers may be filed over the next ten years as a result of the rule change.
Critics have charged that the rule is beyond the scope of DHS' legal authority, and that it represents a fundamental change in immigration law, which can only be accomplished by Congress. Others maintain that easing restrictions on unauthorized immigrants seeking to apply for legal status rewards individuals who have broken the law.
On the other side of the spectrum, immigrant advocates, while generally praising the new rule, have expressed disappointment that DHS has not extended the provisional waiver process to encompass spouses and children of LPRs. They have also called on DHS to expand this kind of provisional waiver processing to waivers that are filed for reasons other than unlawful presence, such as immigration fraud or prior orders of removal.
For its part, DHS emphasized that its decision to limit the provisional waiver process only to the immediate relatives of U.S. citizens is justified because of the high priority that immigration law places on such relatives. It also believes that the rule will encourage LPRs to naturalize. The agency further notes that it is "open to considering" an expansion of the provisional waiver process to the relatives of LPRs after the impact of the new rule has been evaluated.
Policy Beat in Brief
USCIS Issues 154,000 DACA Approvals. U.S. Citizenship and Immigration Services (USCIS) has now granted benefits under Deferred Action for Childhood Arrivals (DACA) program to more than 154,000 individuals, although demand for the program appears to be somewhat tapering off. According to agency statistics released January 17, 2013, the average number of DACA requests received by USCIS per day fell from a peak of 5,715 requests last September to an average of 1,429 requests this month. The DACA program, which President Obama announced last June, allows certain unauthorized immigrant youths who arrived in the United States as children to apply for work permits and temporary protection against deportation. Thus far, USCIS has received more than 407,000 applications for DACA benefits, scheduled more than 371,000 persons for biometric appointments, and approved 154,404 petitions.
New ICE Detainer Policy, Uptick in Removals. Immigration and Customs Enforcement (ICE) will no longer seek custody of deportable noncitizens arrested by state and local law enforcement officials for minor offenses, according to a new policy set forth by ICE in December. The federal agency said it will now only issue a "detainer"—a request that law enforcement officers hold a deportable noncitizen for up to 48 hours so that ICE may take the person into custody—when the noncitizen has been convicted of or charged with a felony offense, convicted of three or more misdemeanors, or convicted or charged with certain serious misdemeanors (e.g. sexual assault, driving under the influence of alcohol, or unlawful possession of a deadly weapon). In addition, ICE will issue detainers for certain serious immigration offenses (e.g. conviction for illegal entry, illegal re-entry following a previous order of removal, outstanding order of removal, commission of immigration fraud, or when the individual poses a significant risk to national security, border security, or public safety).
The new guidance comes amidst ongoing controversy over ICE's Secure Communities program, which screens the fingerprints of those arrested by state and local police officers against federal immigration databases—a practice which enables ICE to determine whether to place detainers on such persons and place them in removal proceedings. Critics charge that the program has led to the removal primarily of low-level offenders. They also claim that it jeopardizes cooperation between the police and immigrant communities.
The new guidelines closely followed ICE's announcement of the number of removals conducted in 2012—a record 409,849 people in FY 2012, representing an increase of roughly 3 percent over the total number of removals in FY 2011 (396,906). According to recent data released by the organization Colorlines, more than 200,000 removals since 2010 were issued for parents with U.S. citizen children.
ICE Ends Task Force Component of 287(g). In a significant shift in policy on the 287(g) immigration enforcement program, ICE has decided not to renew any of its current 287(g) “task force” agreements with state and local law enforcement agencies. The agreements, allowed designated state and local law enforcement agents to perform certain immigration enforcement functions when operating in the field. The 287(g) program, and the task force model in particular, have been heavily criticized by immigrant advocates, who claim that the model leads to racial profiling. A separate type of 287(g) agreement—known as the “jailhouse” model because it allows designated officers to perform immigration enforcement functions for arrested inmates—will remain in effect.
Extension of TPS Status for Haitians, Sudanese, and South Sudanese. Homeland Security Secretary Janet Napolitano has redesignated Sudan and South Sudan for temporary protected status (TPS), a move that will enable nationals of both countries to maintain TPS through November 2, 2014. Similarly, DHS has extended the TPS reregistration period for nationals of Haiti, and will allow Haitians previously granted TPS to apply for an extension of their status through January 29, 2013. Haiti has been designated for TPS status through July 22, 2014. Since 1990, the United States has granted TPS, which includes protection against deportation and permission to work, to nationals of designated countries based on a determination that those countries are unable to accept repatriated nationals because of an ongoing armed conflict or a national disaster. Currently, eight countries are designated for TPS status—El Salvador, Haiti, Honduras, Nicaragua, Somalia, Syria, Sudan, and South Sudan.
Report Finds High Error Rate in Immigration Status Verification Database. A new DHS Office of the Inspector General (OIG) report found that the government's Systematic Alien Verification for Entitlements (SAVE) database frequently fails to record instances in which noncitizens residing in the United States have lost their immigration status as a result of having been ordered deported. An OIG testing program revealed that in 12 percent of cases where an individual was ordered deported, SAVE indicated that the person was lawfully residing in the United States. The database, which is administered by USCIS, is intended to assist state and local officials in determining the immigration status of applicants for public benefits. Officials may query SAVE when an individual applies for disability insurance, food stamps, a driver's license, or other benefits.
Border Patrol Will No Longer Translate for Other Law Enforcement Agencies. U.S. Customs and Border Protection (CBP) issued a memorandum in late November indicating that Border Patrol officers will no longer serve as translators for other law enforcement agencies in need of translation assistance. Instead, the new guidance states that CBP will refer requests from such agencies to private translation service companies used by the government. Prior to the new guidance, Border Patrol officers, who are required to be proficient in Spanish, were frequently called to provide Spanish-English translation assistance for individuals detained by other law enforcement officers. In May 2012, the Northwest Immigrant Rights Project filed a lawsuit claiming that the practice of using CBP officers as translators amounted to a civil-rights violation.
State and Local Policy Beat in Brief
Controversy over DACA and Driver's Licenses Continues. State officials in Iowa announced that they will not issue driver's licenses to individuals granted deferred action under the Obama administration's Deferred Action for Childhood Arrivals (DACA) program. Arizona, Michigan, and Nebraska have adopted similar policies.
In the meantime, a lawsuit has been filed in Michigan challenging a decision by the Michigan Secretary of State to bar DACA recipients from receiving licenses. This is the second such lawsuit to be filed, coming a month after the filing of a similar suit in Arizona. Meanwhile, the Illinois House of Representatives approved a bill that would allow unauthorized immigrants who provide proof of state residency to receive three-year, renewable licenses. The bill, which passed the state Senate in December, now moves to the desk of Governor Pat Quinn.
New E-Verify Laws Take Effect in Three States. New laws in Pennsylvania, Tennessee, and North Carolina that took effect January 1 require additional groups of employers to enroll in and use E-Verify, the federal government's online program for confirming that new employees are authorized to work. Pennsylvania now requires any contractor or subcontractor on a public works contract with a state or local government worth more than $25,000 to use E-Verify. And in Tennessee, all employers with six or more employees must either participate in E-Verify, or retain photocopies of new employees' identification and work authorization documents. In North Carolina, all employers with 100 or more employees must enroll in E-Verify and use the program to confirm that newly hired employees are authorized to work. Already, as of October 1, 2012, this requirement applies to employers that have 500 or more employees, and as of July 1, 2013, it will also apply to employers with 25 or more employees.
Most Arizona-Based Employers Not Participating in E-Verify. Fewer than half of Arizona-based employers have enrolled in the federal government's E-Verify program, despite a 2007 state law requiring all employers to do so,, according to recent media reports. The reports, which analyzed data from DHS and the U.S. Census Bureau, found that the E-Verify enrollment rate was even lower for small employers with four or fewer employees—around 19 percent. One explanation for the low participation rates may be that the law only requires employers to verify the work eligibility of their new employees.
DOJ Files Civil Rights Lawsuit against Alamance County, NC. The Department of Justice filed a lawsuit on December 20 against Alamance County, NC Sheriff Terry S. Johnson and the Alamance County Sheriff's Office (ACSO), alleging that officers have unconstitutionally targeted Latino residents in their policing practices. The suit cites a study of ACSO traffic stops which found that deputies were between four and ten times more likely to stop Latino drivers than they were to stop non-Latino drivers. The Justice Department (DOJ) brought a similar suit last year against the sheriff's office in Maricopa County, AZ.