A dizzying series of legal twists and turns

Introduction

Given the white-hot politics of immigration, it’s perhaps not surprising that President Obama instantly drew fire with a proposal in January to help undocumented spouses of American citizens obtain legal status — without being ousted from the U.S. for years as punishment.

Rep. Lamar Smith, R-Texas — the chairman of the House of Representatives Judiciary Committee — accused Obama of “bending long established rules” and pursuing a “backdoor amnesty.”

“Who is the President batting for — illegal immigrants or the American people?” Smith said in a statement.

Smith is no casual observer. He is the key author of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which established penalties mandating years of exile for illegal immigrants before they can return to the United States and legalize — even if they are married to an American citizen. Marriage is one of the primary ways a person obtains legal status within the largely family-based U.S. immigration system.

Republican members of Congress argued back then that more had to be done to discourage illegal immigration. Too many immigrants were entering the country unlawfully or overstaying visitor visas, members said, and were marrying U.S. citizens or legal residents and staying. Too many relatives of legal residents who were supposed to wait back home for visas, sometimes for many years, were entering ahead of time, illegally, and staying, members added.

Since the 1950s, some illegal immigrants, based on a job or other ties, had been able to plead for legal residency before immigration officials in the U.S. who had the power to grant them that status. In 1994, Congress adopted a statute that codified the ability of illegal immigrants with legitimate family sponsorship to transition to legal status without having to leave the U.S. They could complete their process by paying fees or fines, so long as they had no serious criminal record.

In 1996, Congress upped the fine from $650 to $1,000, and passed the 1996 legislation in an effort to toughen the procedures. Members wanted U.S. consular officers in the immigrants’ homeland to screen applicants — and then mete out years-long “bars” to applicants who had tried to enter the U.S. illegally.

Ultimately, Congress allowed people who had filed petitions for legal status before April 30, 2001, to continue to seek legal status from within the U.S. Then it closed that avenue for immigrants if they originally entered the U.S. illegally — which meant the 1996 legislation started to be more strictly enforced, even for those married to American citizens.

Here’s how the 1996 bars work:

If illegal immigrants entered the U.S. unlawfully, they must return to their home countries for a residency-application interview with U.S. consular officers, who then must apply bars if merited.

The two most basic penalties are three-year bars from the U.S. to penalize “unlawful presence” in the U.S. for more than six months, and 10-year bars for unlawful presence in the U.S. of more than one year. Congress included a waiver possibility to shorten the bar for unlawful presence for some.

But decisions on waivers have taken months, even years, to complete. Waivers must be based on proof that the applicant’s American sponsor is suffering extreme hardship — like a serious medical condition — rather than just heartache or financial loss.

If immigrants have a history of two or more illegal entries to the United States, they aren’t even eligible to apply for hardship waivers. Their penalty is a lifetime bar, with a possible pardon if they remain outside the U.S. for 10 years, some have been told. If applicants are accused of having falsely claimed to be a U.S. citizen to enter the U.S. or of lying to a U.S. official, they can get a permanent lifetime bar.

Wayne Cornelius, an immigration expert at the University of California at San Diego, called the bars “symbolic,” and said there’s no evidence they’ve played a serious role in reducing illegal immigration. After the bars were adopted, the estimated undocumented population in the U.S. rose from 8 million in 2000 to a peak of 12 million in 2007.

Jessica Vaughan, policy studies director at the Center for Immigration Studies, a Washington, D.C., group favoring less immigration, calls the bars “proportionate to the offense.” But she also doubts they’ve had broad deterrent power.

“It is most definitely time to take a good, hard look at this section of the law,” Vaughan said.

Doris Meissner, who was Immigration and Naturalization Service commissioner in 1996, said the impact of mandatory bars on American families is “crying out for broader discussion.” Meissner is now a fellow at the Migration Policy Institute, a nonpartisan research group in Washington, D.C.

On Jan. 6 of this year, U.S. immigration officials announced President Obama’s proposal to implement regulatory changes that address some of these complaints.

The changes, officials said, would benefit the immigrant spouses and adult children only of U.S. citizens — and only if these undocumented relatives are eligible to apply for hardship waivers to overcome the bar for unlawful presence in the U.S. for more than one year.

“The proposal will not change existing laws,” Alejandro Mayorkas, director of U.S. Citizenship and Immigration Services, insisted in a press call. “The [proposed] process would allow these individuals to have their waiver applications processed in the United States — and receive a provisional waiver determination before they complete the visa process at a consulate outside the United States.”

The benefit wouldn’t be open to those whose previous offenses make them ineligible to apply for a waiver right away — like those who had crossed the border illegally more than once. Couples filing hardship waivers risk failing, but officials said they expect many to succeed and avoid long separation.

Mayorkas said the administration was mindful, too, that families can face “precarious” conditions when they travel abroad.

In 2011, U.S. citizen Jake Reyes-Neal, 21, was killed by thieves in an attack in Juarez, Mexico, where the Colorado man had moved with his undocumented wife and their baby to pursue a waiver at the U.S. consulate there.

Rep. Smith declined to comment on the concerns of citizens who face long separation.

His staff pointed to his statement in January, when he said waivers were “not intended to be applied to millions of illegal immigrants.”

Other immigration hawks in Congress also declined comment, including Rep. Steve King, R-Iowa, and California Republican Reps. Dana Rohrabacher, Brian Bilbray and Elton Gallegly.

A notice of intent to adopt the new Obama rule was published Jan. 9 in the Federal Register. And the proposed rule was posted to the Federal Register April 2. A comment period ran from April 2 to June 1.

The final rule hasn’t been published yet, and immigration officials say they have no target date. When the rule is finally published, it will go into effect 30 to 60 days later.

If Obama isn’t president when it goes into effect, a new president — Mitt Romney — could undo the rule through the same rulemaking process.