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The proposed rule change for mixed-status families: What it does, doesn't do

This morning, the Obama administration announced a proposed change to the process for granting green cards to the undocumented spouses and parents of U.S. citizens, one intended to ease the long-term family separation endured by many as they wait abroad to re-enter legally.

It's a big deal. Then again, at least in terms of scale, not quite as big as it might seem.

The proposal, posted this morning in the Federal Register, affects people who are applying for a waiver to the three- or ten-year re-entry bar for those who have been living in the U.S. illegally, but wish to adjust their status through immediate family. The existing rule - one that won't change - is that most undocumented spouses and children of U.S. citizens who apply for a green card must return to their native countries to be processed, allowing them to then return legally.

But there's a major catch. Once they leave, depending on how long they’ve been in the U.S. illegally, they can be barred from returning for up to a decade. The solution for some is to prove that the absence will cause “extreme hardship” to a citizen spouse. If they can, a waiver can be obtained to let them return sooner. But these waivers are difficult to obtain, making for long waits. If it's not granted, the person waiting abroad can be stranded there for years, separated from loved ones and potentially draining the family's resources. Even those who do eventually obtain waivers typically find themselves stuck abroad long-term, as they take months to process.

The proposed rule change would allow those seeking a hardship waiver to do so on U.S. soil, meaning they would know before they leave the country if they are approved. The idea would be, then, that people travel abroad to get their visas with a provisional waiver in hand, allowing them to return unimpeded within a few weeks and sparing them the prospect of getting stuck.

Those who do get stuck and can't get a waiver to return are in for a long wait: Current immigration law punishes people who have been living in the U.S. illegally for at least six months with a readmission ban of three years. If they've been here illegally more than a year, they can’t come back legally for a decade.

Here's what the proposed change will not do: "We do not anticipate that this will impact millions of people,” U.S. Citizenship and Immigration Services director Alejandro Mayorkas said today in a telephone news conference, and he's right. The proposal would not amend existing laws, nor make it easier to obtain a hardship waiver, granted only to about 17,000 people last year.

Obtaining a hardship waiver is no easy feat. First, the hardship must only be to a U.S. citizen spouse or parent, and U.S. citizen children don't factor in. Second, the simple pain of separation is not considered hardship enough. The family must prove there is extreme economic, physical, psychological or other hardship to the citizen relative. And if foreign family members are inadmissible to the U.S. because of a criminal conviction, they can’t qualify.

One example of extreme hardship, Mayorkas said today, might be “a U.S. citizen who suffers a grave illness whose sole caretaker is a son or daughter.” Other examples might include the citizen spouse of a foreign relative who is the sole breadwinner.

The key change would be that the wait time for waiver approval (on average six months, according to USCIS), would be spent in the United States, and this makes a big difference. And provided that mixed-status families get sound legal advice (although many don't), applying for the waiver here would mean they would at least know if they can or can't obtain one, sparing them the difficulty of a long-term separation, whether it officially qualifies as hardship or not.

But it would not open the proverbial floodgates: Only 23,000 people applied for hardship waivers last year, about 80 percent of which were granted. Most of the estimated 10 million undocumented immigrants in the U.S. will be staying that way, at least for now.

Federal officials say their the goal is to implement the change within a year, and it's notable that the Obama administration has again taken the administrative route in making an immigration policy change. This was the case last summer regarding promised deportation reviews, a move that triggered accusations of "backdoor amnesty" from proponents of tighter restrictions.

Posting the proposed change in the Federal Register kicks off the federal rule-making process, which dictates a public comment period after the change is posted, sometimes with hearings. The agency needn't heed the comments to make the change, but expect hearty opposition.