While certain facets of President Obama’s executive orders around undocumented immigrants are being challenged in the federal courts through a lawsuit brought by a number of states, the Department of Homeland Security (DHS) is moving forward with efforts to expand category eligibility for provisional waivers. With the expansion, for which DHS is soliciting public comment, expands to family-sponsored immigrants, employment-based immigrants, certain special immigrants and Diversity Visa program selectees. These categories are additional to the pre-existing U.S. citizen spouse or parent.
Current rules around the waiver program say undocumented immigrants who can’t claim connections to a U.S. citizen spouse or parent could be made to leave the United States. Individuals who could not obtain a waiver faced a ban of between three and 10 years on re-entry to the country.
“The waivers allow illegal immigrants to stay in the country while they await visas, and avoid a penalty under U.S. law that bars persons who entered the country illegally from returning for at least three years,” reads a story in The Washington Free Beacon.
The three- to 10-year ban is contingent on the amount of time an undocumented immigrants lives within the borders of the United States and then leaves the country. For those who live in the country for less than a year and then leave, the ban typically lasts for three years. For those immigrants who reside inside the United States for more than a year, the resulting ban can last for up to 10 years.
Through expansion of the current rules around provisional waivers, the provisional waiver process would be made available to all aliens “who are statutorily eligible for waivers of inadmissibility based on unlawful presence and meet certain other conditions,” according to the DHS proposal.
The second aspect the proposed rule change addresses the element requiring waiver applicants to demonstrate “extreme hardship.” According to the DHS proposal, “an applicant for a provisional waiver would be permitted to establish the eligibility requirement of showing extreme hardship to any qualifying relative (namely, U.S. citizen or lawful permanent resident, spouse or parents.)”
Criticism around the proposal centers on what some see as a kind of going from an undocumented status to legal status through a kind of laundering process, and that the program will perpetuate fraud in the system.
“It’s very bad policy,” Jessica Vaughan, director of policy studies and the Center for Immigration Studies, says.
On this point, DHS officials vehemently disagree. “DHS is proposing to expand the provisional waiver process in the interests of encouraging eligible aliens to complete the visa process abroad, promoting family unity, and improving administrative efficiency.”
Specifically, DHS officials say, an examination of an updated process around provisional waivers will result in a reduction of time relatives are separated from U.S. citizen families. Additionally, an expansion of the waiver process will result in reducing costs incurred by the Department of State (DOS) and the DHS, limit the number of exchanges between DOS and DHS, and also reduce part of the immigrant visa caseload for DOS.