The post was originally published at the Cato@Liberty blog here and is reproduced with permission from the author.
Under current law unauthorized immigrant spouses or children of U.S. citizens can gain lawful permanent residency (LPR) status if they return to their home country to apply at a U.S. consulate or embassy. The Catch-22 is that unauthorized immigrants who have lived here are barred from returning for up to ten years once they leave the U.S. The immigrant has to apply for an unlawful presence waiver to remove the bar, a process that could take up to 28 months, including appeals, separating the immigrant from his U.S. family in the mean time. Consequently, many unauthorized immigrants who could regularize their status do not take this opportunity.
The government is now asking for comments on a proposed rule change that would close part of that administrative Catch-22. Under the proposed rule an unauthorized immigrant could apply for and adjudicate the waiver before departing for interviews in consulates abroad, shortening the separation time between the immigrant and his family. Half of waivers are approved in seven days at the American consulate in Ciudad Juarez, Mexico. The other half can take years.
The waiver removes the bar on returning if the immigrant can show that “being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative extreme hardship.” Extreme hardship only applies to the migrant’s U.S. citizen spouse or parent, not to the immigrant himself or his U.S.-citizen children. Extreme hardship is determined by USCIS bureaucrats where relevant factors include the intensity of family ties, health, age, financial impact, and country conditions. Financial problems and the normal hardship of familial separations are not, by themselves, sufficient reasons to grant a waiver.
Even with those strict legal requirements, thousands of people could have their immigration status legalized. The proposed rule change doesn’t go far enough. A better legislative change would remove the bar on reentry for unauthorized immigrants who are married to a U.S. citizen, obviating the need for a waiver entirely. Limiting it to spouses would not provide an incentive for unauthorized immigrants to have children in the U.S. to claim future LPR status through their children’s citizenship, not that there is a problem with that but some might object. This change would preserve the spirit and intent of our restrictive immigration laws while allowing many to regularize their status. Ted Alden of the Council on Foreign Relations thinks that up to a million unauthorized immigrants could regularize their immigration status if a rule change along those lines was proposed.
The government’s rule change is not an amnesty as some commentators claim. It would streamline a costly bureaucratic process for people who can already apply for LPR status and diminish the number of unauthorized immigrants without placing additional costs on the government. Sounds like a pretty good deal to me.
First, I would like to clarify that we are not an open borders group. Not that there is anything fundamentally wrong with the idea of open borders, but it is NOT what we advocate for. Also, I believe if you read what are are actually about, you would feel differently. I encourage you to look at the FIRM principles: 1. Provide a Path to Permanent Resident Status and Citizenship for All Members of Our Communities. Our immigration policy needs to be consistent with reality. Most immigrants are encouraged to come to the United States by economic forces they do not control. Immigrants bring prosperity to this country, yet many are kept in legal limbo. Legalization of the undocumented members of our communities would benefit both immigrants and their families and the U.S.-born, by raising the floor for all and providing all with equal labor protections. 2. Reunite Families and Reduce Immigration Backlogs. Family unity is a guiding principle in federal policy. Immigration reform will not be successful until we harmonize public policy with one of the main factors driving migration: family unity. Currently families are separated by visa waiting periods and processing delays that can last decades. Comprehensive immigration reform must strengthen the family preference system, by increasing the number of visas available both overall and within each category. In addition, the bars to re-entry must be eliminated, so that no one who is eligible for an immigrant visa is punished by being separated from their family for many years. 3. Provide Opportunities for Safe Future Migration and Maintain Worker Protections. 4. Any worker visa program must include provision for full labor rights (such as the right to organize and independent enforcement rights); the right to change jobs; and a path to permanent residence and citizenship. A regulated worker visa process must meet clearly defined labor market needs, and must not resemble current or historic temporary worker programs. The new system must create a legal and safe alternative for migrants, facilitate and enforce equal rights for all workers, and minimize the opportunities for abuse by unscrupulous employers and others. 5. Respect the Safety and Security of All in Immigration Law Enforcement. Immigration enforcement laws already in place are creating fear among immigrant and nonimmigrant communities alike. Ineffective and costly policies should not be expanded, but new alternatives and solutions should be sought. Fair enforcement practices are critical to rebuilding trust among immigrant communities and protecting the security of all. Any immigration law enforcement should be conducted with professionalism, accountability, and respect. Furthermore, there should be effective enforcement of laws against human trafficking, and a border strategy that emphasizes training, accountability and competency that rejects militarizing the border with Mexico. In all cases, immigration reform must respect clear boundaries between federal immigration enforcement, local law enforcement and the enforcement of labor laws. 6. Recognize Immigrants’ Full Humanity and Eliminate Barriers to Full Participation. Immigrants are more than just workers. Immigrants are neighbors, family members, students, members of our society, and an essential part of the future of the United States. Our immigration policies should provide immigrants with opportunities to learn English, naturalize, lead prosperous lives, engage in cultural expression, and receive equitable access to needed services and higher education. FIRM opposes unreasonable barriers to naturalization, including excessive fees, endless and discriminatory background checks, and grinding bureaucracy. 7. Restore Fundamental Civil Rights of Immigrants. Since September 11, 2001, selective and discriminatory implementation of sweeping law enforcement policies has not only failed to make us safer from future attacks, but undermined our security while eroding fundamental civil liberties. Failure to protect these fundamental rights goes against the core values of a democracy, and, therefore, the United States. For the benefit of everyone, and not just immigrants, these basic rights must be restored and protected. 8. Protect the Rights of Refugees and Asylees. The United States has always been viewed as a safe haven for those fleeing persecution. Yet, since September 11, 2001, significantly fewer refugees have been admitted. The U.S. government has an obligation to remove barriers to admission and save the lives of thousands of people across the world fleeing for their lives. In addition, our current policies treat many asylees unequally based on their country of origin. Our country must ensure fair and equal treatment of individuals and their family members seeking asylum, and end the inhumane detention and warehousing of asylum seekers. 9. Economic Justice. America’s immigration system plays an important and often under-recognized role in United States labor policy, opening doors to particular populations to serve the short and long-term needs of American industry. Under such a dynamic, immigrants can be pitted against native-born workers in a labor market under stress from general economic insecurity. We believe strongly in the solidarity of all workers, especially low wage workers. Any worker – immigrant or native born – vulnerable to exploitation threatens the standing of all workers. 10. No Criminalization. The United States has a long and revered immigrant past; however current immigration laws, which seek to criminalize future flows of immigrants and workers, undermine that history. Governments that selectively legislate certain groups of people as criminal in their behavior or appearance and limit access to government services and protections under this basis run the risk of creating abuse of authority and discrimination. Such abuse increases exponentially when factors of race, religion, national origin, and sexual orientation are involved. 11. Restore the number of refugees that enter the United States to pre 9-11 levels.Thank you.