The announcement and proposed rules published today bring a change in the procedure the Department of Homeland Security follows to review and adjudicate these waivers. Certain individuals applying for legal permanent residency who entered the United States undocumented and are currently in the United States must leave the United States and apply for their legal residency at the Embassy or Consulate in their home country. This departure from the United States creates a bar to their return which in most cases translates to 10 years of separation from their spouses and family. The available waiver under the law permits the applicant to reduce this time by demonstrating that the period apart from his or her spouse, children and parents would result in “extreme hardship”. This law and applicable regulation has been in the books for some time, and the change in procedures does not alter the burden of proof for the applicant.
The only change the procedure brings is the ability for the applicant to remain with his or her family while the agency adjudicates his application. Prior to this procedural change, the applicant’s only alternative was to leave his or her family and depart to his or her country of origin where after submitting his application for residency he or she would also wait for approval of the waiver application. Backlog adjudication of waivers meant the applicant would remain outside of the United States for an extended period of time while his or her family remained in the United States. The procedural change allows the applicant to remain in the United States while the waiver is adjudicated. This does not in any way make it “easier” for the applicant to obtain legal residency nor is it a “backdoor amnesty”. The applicant still has to meet the established burden of proof and the applicant is not pardoned or exonerated.
Contrary to Rep. Lamar Smith’s (R-Texas) comment that the "President Obama and his administration are bending long established rules to put illegal immigrants ahead of the interests of American citizens," the procedure actually puts interests of American Citizens at the forefront. American Citizens spouses, children and parents are relieved from the sacrifice and undue agony of separation from their loved ones. Families are kept together. The family is the microcosm of society, the nuclear unity that reflects the intrinsic values of a society and this change in the immigration procedures ensures the stability and well-being of this unity. Anyone twisting, and distorting this procedure for their own political, selfish and antagonizing purposes ignores the interests of American Citizens and American Families.