Published — January 3, 2013 Updated — January 26, 2018 at 12:35 pm ET

Feds announce new rules for legalizing undocumented spouses

Center report featured families separated for years by immigration law


Toddler Alana communicates with father, Issac Hernandez, who has been barred from the U.S. for life. Her mother, Amanda Seyer, has since moved the family from Missouri to Mexico to be with her husband. Courtesy of family

The Department of Homeland Security has announced new rules designed to make it easier for thousands of U.S. citizens to legalize undocumented spouses without risking years of separation first.

The rules—published in the Federal Register Thursday—spell out a policy first announced by President Obama a year ago, in January 2012; the policy is designed to help families avoid the hardship of long separation. However, representatives of those families say thousands of others won’t benefit, and will still face certain exile under a series of little-known but mandatory punishments Congress created in 1996.

Those penalties and their effects on families were the subject of a recent report by the Center for Public Integrity. Thousands of U.S. citizens, many with children, have attempted to legalize spouses only to see them ordered out of the United States for a decade or more, as mandated by a 1996 immigration law. As a result, countless couples have chosen not to come forward and attempt to legalize the foreign spouse.

Here is how the current system works, and how the new rule – which takes effect March 4— alters the green-card application process:

Under current law, U.S. citizens and legal permanent residents can sponsor spouses or certain other relatives for a green card, which is a legal permanent residency visa. People who entered the United States unlawfully cannot complete the process for obtaining a green card without returning to home countries first for screening at U.S. consulate. Once these people leave the United States, however, they trigger what are called mandatory “bars” to returning to the United States.

The bars – penalties Congress created — vary from three to 10 to 20 years, or even life, as the report by the Center and KQED public radio made clear.

People whose only infraction was to illegally enter the country once and stay for more than a year can later apply for hardship waivers—waivers commonly granted only for extraordinary hardship, beyond the pain of separation from a spouse. But they can only apply for waivers once they are barred, and living outside the United States.

Couples that have applied for waivers complain that months, even years, have gone by before they have been either granted or rejected, causing families severe financial drain and emotional hardship.

Thousands of couples have not been eligible for waivers at all. This group is large: it includes anyone who has been deported, or admits they crossed the border more than once, or anyone whom immigration officials suspect might have lied or used a fake document to gain entry.

The new Homeland Security rule won’t change any of these terms for eligibility or rejection.

However, the new procedure will allow U.S. citizens’ undocumented spouses – if their only offense is unlawful presence— to apply for hardship waivers before, not after, they leave the United States for their required green-card interview back in home countries.

Under the new rules, by the time they go to their final interview, these immigrants will know if they’ve been granted waivers. Separation of couples is likely to be cut to a matter of months, and families will have more information with which to make plans, U.S. officials say.

The new procedure “facilitates the legal immigration process and reduces the amount of time that U.S. citizens are separated from their immediate relatives who are in the process of obtaining an immigrant visa,” Secretary of Homeland Security Janet Napolitano said Wednesday.

Randall Emery, president of American Families United, called the new procedure “a step in the right direction,” but said “we expect only 5 percent of our members to benefit.”

American Families United is a loose network of U.S. citizens who’ve been separated from foreign spouses, or forced to move abroad to remain with them. Members also include many citizens who are too afraid to try to legalize a spouse because they fear lengthy bars will be imposed.

Emery’s group has about 100 active members at the moment, he said, and 4,000 supporters through a Facebook connection. Many families are reluctant to join a support group, or go public at all about their predicament.

American Families United, Emery said, will beef up lobbying in an effort to influence immigration reform proposals and address the continuing problems of its members —problems that were detailed by the Center’s investigation.

Read more in Inequality, Opportunity and Poverty

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