USCIS and Obama will Soon Correct a Major Immigration Law Failure
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USCIS and Obama will Soon Correct a Major Immigration Law Failure

January 7, 2012, 11:40 pm
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Obama discovers a way to push aside GOP anti immigrants and begins to help undocumented immigrants
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January 7, 2012 - New York- In a move that has left GOP lawmakers frustrated and confused, USCIS Director Alejandro Mayorkas, announced Friday that the immigration service would be making a major administrative change in its procedures for processing thousands of cases where a U.S. citizens applies for legal residence for an undocumented spouse.  Under current law an undocumented spouse that entered illegally or remained past the visa date (unless an immediate relative) may not apply for adjustment of status and become lawful permanent resident unless they return to the their home country and reenters properly.  The big drawback with this scenario occurs when the undocumented resident remained in the U.S. illegally for any period greater than six months.  In such a case, they are subject to the 3/10-year bar to re-entry.  This means that they will have to remain abroad, anywhere between three to ten years, unless the U.S. citizens is granted a waiver.  The catch is that such a waiver (I-601) can only be filed after the undocumented spouse leaves the U.S. The processing time for these waivers can take over a year; a long time to separate families.

Under the proposed rule change, the waiver may be filed in the United States, therefore the long wait abroad will be greatly reduced, from years to perhaps weeks as the couple will know before the trip abroad whether the waiver has been approved.

If the waiver were approved, the immigrant spouse would be given a temporary waiver but still would have to return to his country to apply for the permanent resident visa (green card) to return to the United States.

Mayorka's proposal, published in the Federal Register, does not require congressional action to become final.

He said the recommend change is aimed to ease the hardship caused to citizens when they are separated from their undocumented-immigrant spouses, some times for longer than one year.

“We are proposing a process change to better serve the current law’s goal, a change that will reduce the time of separation and thereby alleviate the extreme hardship to the United States citizen,” Mayorkas said.

He explained that the high standard for approving a waiver would not be modified. In order to be granted an I-601 waiver, illegal immigrants would still have to prove that their separation would cause an “extreme and unusual hardship” to their citizen spouse or parents.

In 2011 some 23,000 undocumented immigrants requested for waivers from the 10-year bar and about 17,000 were granted, Mayorkas said.

The Arizona Republic News stated that Louis DeSipio, a political-science professor at the University of California-Irvine, opined that this new procedure could boost Obama’s standing with Latinos.

“It gives the administration, or the candidate Obama, a message to share with Latino communities when he campaigns,” DeSipio said. “I don’t think his message will be solely one of immigration but will fit immigration into a larger story about how the Democrats will offer more to Latinos than Republicans. And I think that total message will actually work pretty well in Latino communities. But this is just a piece of that story.”

Immigrant advocates applaud the proposed regulatory change as a sensible and long-overdue step that would help protect family unity by speeding up reunification.

But critics attacked the change as one more example of the administration backing off from enforcing immigration laws.

Of course, the news of the proposed rule modification, has increased the level of resentment of  GOP lawmakers, who are also angry at other recent propositions set forth by the Obama administration.  “President Obama and his administration are bending long established rules to put illegal immigrants ahead of the interests of American citizens and legal immigrants. This proposal from the Obama administration comes with no surprise considering their abuse of administrative powers,"  said U.S. Rep. Lamar Smith, R-San Antonio., Texas. 

This news follows last summer's Morton Memo which directs that ICE attorneys and employees to exercise "prosecutorial discretion" and desist from going after noncitizens with close family, educational, military, or other ties in the U.S. As an alternative, the memo orders them to apply their efforts for people who pose a threat to public safety or national security. Lamar called this memo an attempt by the president to grant “backdoor amnesty.”

The memo  was followed by an announcement by the Department of Homeland Security that it would begin reviewing the case files of the estimated 300,000 illegal immigrants in deportation proceedings to ascertain which deportation cases should be shelved.

As a recent Obama rally in Texas the President said “immigration is not just the right thing to do.  It’s smart for our economy.  It’s smart for our economy.  And it’s for this reason that businesses all across America are demanding that Washington finally meet its responsibilities to solve the immigration problem.  Everybody recognizes the system is broken.  The question is, will we finally summon the political will to do something about it?  And that’s why we’re here at the border today."

It seems appropriate to wonder if the Obama's administration's recent pro-immigrant movement is directed at primarily obtaining enough votes for Obama to win a second turn in November, or is it because he truly believe in the long overdue comprehensive immigration reform?  Time will tell.

Attorney with over 35 years of experience. Past president Federal Bar Association NJ Chapter (1997-2002). Offices in New York, NY, Newark, NJ. Tel: 888-460-1800 and
Apsan Law Offices
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