Rule Shortens Time Immigrants Separated from American Family

Immigrants Can Apply for Waiver to Stay Together

Hispanic family smiling in crop field
Ariel Skelley / Getty Images

One of the first actions of the Obama administration in 2012 was an important rule change to immigration policy that reduced the time that spouses and children of undocumented immigrants were separated from their citizen relatives while applying for legal status.

Latino and Hispanic groups, immigration lawyers and immigrant advocates praised the move. Conservatives on Capitol Hill criticized the rule change.

Because the administration changed an administrative rule and not U.S. law, the move did not require the approval of Congress.

Based on census data and anecdotal evidence, hundreds of thousands of U.S. citizens are married to undocumented immigrants, many of them Mexican and Latin American.

What is the Rule Change?

The hardship waiver eliminated the requirement that illegal immigrants leave the United States for long periods before they could ask the government to waive its ban on legally re-entering the U.S. The ban typically lasted three to 10 years depending on how long the undocumented immigrant had been in the United States without the government’s permission.

The rule allowed family members of U.S. citizens to petition the government for the so-called "hardship waiver" before the undocumented immigrant returns home to formally apply for a U.S. visa. Once waivers were approved, immigrants could apply for green cards.

The net effect of the change was that families would not endure long separations while immigration officials were reviewing their cases. Separations that had lasted years were reduced to weeks or less. Only immigrants without criminal records were eligible to apply for the waiver.

Before the change, applications for hardship waivers would take as long as six months to process. Under former rules, the government had received about 23,000 hardship applications in 2011 from families that faced separations; about 70 percent were granted.

Praise for the Rule Change

At the time, Alejandro Mayorkas, U.S. Citizenship, and Immigration Services director, said the move underscores “the Obama Administration’s commitment to family unity and administrative efficiency” and will save taxpayers money. He said the change would increase the “predictability and consistency of the application process.”

The American Immigration Lawyers Association (AILA) applauded the change and said it “will give countless American families a chance to stay together safely and legally.”

“Although this is just a small part of dealing with the dysfunction of our immigration system, it represents a significant change in the process for many individuals,” said Eleanor Pelta, the AILA president. “It’s a move that will be less destructive to families and bring about a fairer and more streamlined waiver process.”

Before the rule change, Pelta said she knew of applicants who have been killed while waiting for approval in dangerous Mexican border cities that are riddled with violence. “The adjustment to the rule is important because it literally saves lives,” she said.

The National Council of La Raza, one of the nation’s most prominent Latino civil rights groups, praised the change, calling it “sensible and compassionate.”

Criticism of the Hardship Waiver

At the same time, Republicans criticized the rule change as politically motivated and a further weakening of U.S. law. Rep. Lamar Smith, R-Texas, said the president had “granted back-door amnesty” to potentially millions of illegal immigrants.

Political Motivation for Immigration Reform

In 2008, Obama had won two-thirds of the Latino/Hispanic vote, one the country’s fastest-growing voting blocs. Obama had campaigned on implementing a comprehensive immigration reform plan during his first term. But he said problems with the worsening U.S. economy and stormy relations with Congress forced him to postpone plans for immigration reform. Latino and Hispanic groups had criticized the Obama administration for aggressively pursuing deportations during his first presidential term.

In the 2011 general presidential election, a solid majority of Hispanic and Latino voters still favored Obama while expressing in independent polls a disapproval of his deportation policies.

At the time, Homeland Security Secretary Janet Napolitano had said the administration would use more discretion before deporting undocumented immigrants. The aim of their deportation plans was to concentrate on immigrants will criminal records rather than those who have violated only immigration laws.