Last Friday, the Department of Homeland Security proposed changes to the way that the United States Citizenship and Immigration Service will consider certain family reunification cases. Though the complexity of the law—and what these proposed changes would do—makes it a bit confusing to understand, this proposed change is an answer to many, many prayers.
I visit Spanish-speaking churches on a fairly regular basis to talk about immigration issues. I seldom visit such a church without having at least one family come up to me afterwards to explain a situation like this: Dad is a U.S. citizen. The kids were born here in the U.S. and are also citizens. But Mom is not: she’s undocumented. She came unlawfully to the U.S. many years ago from Mexico (or Guatemala, or Honduras, etc.)—(frequently) as a child, brought by her parents— and now they want to know if Mom is eligible for legal status through her U.S. citizen spouse and children.
Many people presume marriage to a U.S. citizen or having a U.S. citizen child is the easiest way to get a “green card” (permanent legal status), but it’s not that simple. You see, despite the widespread misperception kids born in the U.S. serve as “anchors” to get their parents legal status, the U.S. citizen kids are not much of a help. Under the law, until age 21, they cannot file a family petition for anyone (and even then, in most cases, parents will be unable to benefit from their adult child’s petition unless they first wait ten years outside of the U.S.).
As a U.S. citizen, Dad can file a petition for his wife. If we file the right form, include the appropriate fee, and provide adequate evidence both that Dad is a U.S. citizen and that Mom and Dad are legally and legitimately married, the petition will probably be approved in about six months. That’s only the first step, though: from there, if Mom entered the U.S. unlawfully (as opposed to entering lawfully and overstaying a visa), and presuming she did not have a previous family petition pending from prior to May 2001 (to be grandfathered in under an old, more generous law), she cannot adjust her status and get her green card within the U.S. Her only option is to return to the U.S. consulate in her country of origin—if she’s Mexican, that means going to the extremely dangerous city of Ciudad Juarez—to apply for her immigrant visa (green card) there.
The trick is that, under a tough law signed by President Clinton in 1996, the moment that Mom leaves the U.S. for her visa appointment in Ciudad Juarez, she will trigger a ten-year bar to being able to re-enter the U.S. lawfully, because she spent more than one year unlawfully in the U.S. Her only hope of actually being granted a visa—beyond waiting, presumably apart from Dad and the kids (unless they decide to move to Mexico), for ten years—is that she would be granted an “extreme hardship waiver,” if she can establish to a U.S. government bureaucrat’s satisfaction that her absence will cause extreme hardship to her U.S. citizen husband (the law does not directly consider hardship on the kids, which is why a parent of U.S. citizen children who does not also have a spouse or parent who is a citizen cannot even apply for the waiver).
That seems obvious: it would be extremely hard for almost any marriages to survive a ten-year separation, and extremely hard for most U.S. citizens to leave their jobs, extended families, and communities to go live in a foreign country with their spouse. In reality, though, many of these waiver requests are denied, often in ways that seem very arbitrary. Though the law is the same, different U.S. government officers in different parts of the world also seem to have dramatically different understandings of what “extreme hardship” means: in some parts of the world, less than one in four “extreme hardship waivers” is approved, while in other parts of the world as many as three out of four are regularly approved.
In any case, though, there is never a guarantee: even a very well-prepared case with extensive evidence of uniquely extreme hardship to the U.S. citizen spouse—perhaps psychological evaluations saying that Dad will be severely depressed without his wife, medical records stating the inadequacy of healthcare for Dad’s chronic illness in Mexico, and verification that Dad does not speak Spanish and would have trouble finding work if he moved—there is a risk the waiver will be denied and Mom will be stuck in Mexico for the next ten years. For many families, it feels like a game of Russian Roulette: try to do things the right and legal way and you might come back a week later with a green card. Or your family might be divided for a decade. And there’s no way to know in advance. Given that risk, many decide to wait in the U.S.—with Mom present illegally—and hope and pray that a law changes.
What the Obama Administration’s new proposed change does is allow this family to file their waiver request in advance, so the Mom can travel to Ciudad Juarez for her interview with the knowledge that the waiver has already been approved (or, if it is denied, decide not to leave the country, such that she does not trigger the ten-year bar). It does not allow anyone who was not already eligible to apply for legal status to receive it, but it does take away the element of uncertainty and risk that keep many from applying today. And it does so using the discretion granted to the Department of Homeland Security under current law, such that the Obama Administration is able to bypass a Congress that has shown little interest in fixing the flaws in our immigration system.
The effect is a new policy—likely to go into place in the coming months—that both respects the rule of law as it is already written and keeps families together, both of which are priorities for most Christians concerned with immigration policy. It also comes as the answer to many, many prayers, particularly by believers whose families now have hope of staying, united and fully in submission to the law, in the United States.
Matthew Soerens is the co-author of Welcoming the Stranger: Justice, Compassion & Truth in the Immigration Debate (InterVarsity Press, 2009) and the US Church Training Specialist at World Relief. His blogs appear here on Mondays.
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