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CLINIC’s Acting Executive Director on What the Next President Needs to Do on Immigration Day 1

Oct 17, 2012
Donald Kerwin

Click here for the HuffPost blog.

On Jan. 22, 2013, President Romney or President Obama should take a dramatic step to stabilize, strengthen and promote the integration of hundreds of thousands of American families. The president should issue an Executive Order that would allow persons who have passed the first hurdle in qualifying for a family-based visa to seek a waiver before they leave the United States that would permit their return after they secure a visa. To understand the significance of this step requires a primer on our nation's family-based immigration system.

The United States awards most of its "green cards" -- roughly two-thirds -- to persons who enjoy close family ties to U.S. citizens or lawful permanent residents (LPRs). This process begins with the filing of a petition by a U.S. citizen or LPR for a non-citizen family member. By approving the petition, U.S. Citizenship and Immigration Services (USCIS) formally recognizes the existence of a qualifying family relationship. The agency then assigns a "priority date" or number based on the petition's filing date. When the date becomes "current" or advances to the front of the visa queue, the qualifying family member can apply for an immigrant visa. However, backlogs for persons

with approved petitions can span years, even decades, due to limits on the visas that can be issued to nationals of any one country (no more than 7 percent of the total) and to caps on the number of visas available to persons in different "preference categories." The latter are defined by the person's family relationship to the U.S. citizen or LPR. In 2009, the U.S. Department of State (DOS) reported that 4.9 million relatives of U.S. citizens and LPRs languished in visa backlogs.

Once a visa becomes available, most applicants must leave the country to apply for the visa at a U.S. consular office. However, because they have been "unlawfully present," their departure triggers a ten-year bar on readmission. The bar can be waived upon a showing of "extreme hardship" to a U.S. citizen or LPR spouse or parent. But the waiver process can be time-consuming and there is no guarantee that it will be successful. Given the possibility of long-term family separation, many persons who have passed the first stage in this process choose to remain in the United States and to forfeit the possibility of legal status. Other families do not initiate the visa process at all.

Why should President Obama or President Romney make this technical change an early priority? First, it would reflect their immigration commitments, party platforms, and campaign statements. The Obama administration has already taken a significant step in this direction. In April 2012, USCIS published a proposed rule that would allow certain close family members of US citizens -- spouses, unmarried children under age 21, or parents -- to apply for waivers before leaving the country. However, persons in preference categories -- to whom the rule does not extend -- will continue to face significant uncertainty, expense, lengthy separation from family, and even danger, as they negotiate the waiver process in locations like Ciudad Juárez. Governor Romney, in turn, has vowed that as president he would remove the "red tape" that keeps immigrant families apart and would give the immediate families of LPRs "the same priority as citizens" in the visa process. Pre-adjudication of waivers would seem to be consistent with these goals.

Second, executive action on this issue would benefit many thousand U.S. families. USCIS estimated that its proposed rule would increase waiver applications for "unlawful presence" by between 54,887 and 197,594 over a ten-year period. It also concluded that the rule would reduce overall visa processing times, shorten periods of family separation, and reduce costs for USCIS and DOS.

Third, this procedure would promote and reward compliance with the law. The unauthorized have been characterized as scofflaws who are seeking to obtain an advantage over those who have "played by the rules." The persons affected by this provision belie that claim. They have gone through the proper legal channels. They are not jumping ahead in the line: Most have been in the line for years. Pre-adjudication of waivers -- while not changing any of the substantive legal requirements for a visa or a waiver -- would encourage more family members of US citizens and LPRs to continue the visa process and would prompt others to begin this process.

Fourth, the president should pursue this initiative because he can. The larger problems related to the way that the family-based immigration system separates and destabilizes families can be resolved legislatively by easing the yearly caps by nationality and preference category, and by allowing more persons to obtain their green cards without having to leave the country. However, Congress has failed to address immigration challenges as diverse as the DREAMers (on the one hand) and the nation's need for more highly-skilled workers (on the other). Early Executive action of this kind would signal the president's willingness to lead on immigration reform and to choose the well-being of American families over the politics of division and exclusion.