President Obama, here's a few ways you can easily aid immigr
President Obama, here's a few ways you can easily aid immigrants
Allan Wernick
Thursday, January 6th 2011, 4:00 AM
The Obama administration has disappointed immigrants and their supporters. The President increased enforcement against undocumented immigrants. He hoped to win Republicans' support for a path to citizenship for undocumented immigrants, but his actions only stigmatized immigrants, reinforcing the notion that they are a burden on our country.
If the President is serious about justice for undocumented immigrants, he can use his power as head of the executive branch of government - the branch that includes the U.S. Citizenship and Immigration Services and U.S. Immigrant and Customs Enforcement - to make it easier for immigrants to get permanent residence or otherwise stay in the United States. If he is serious about doing the right thing for immigrants, I've got some suggestions for him.
First, he should simplify and liberalize the U.S. Citizenship and Immigration Services' adjudication of "unlawful presence" waivers. "Unlawful presence" refers to the law Congress passed in 1996 that makes it difficult to for undocumented immigrants to get permanent residence. This letter from Ricardo R. of Jackson Heights illustrates the problem. Ricardo writes:
"My mother brought me across the border unlawfully from Mexico when I was 10. If I marry my U.S. citizen girlfriend, can I get permanent residence?"
Unfortunately, Ricardo must travel home for his immigrant visa interview and thus will face a 10-year bar to returning. To avoid the bar, he must prove that his wife-to-be will suffer extreme hardship if he doesn't get his green card. Those waivers are hard to get. He can't even apply to the USCIS to waive the unlawful presence bar until he goes abroad for his immigrant visa interview. If the USCIS then denies his waiver application, he will be stuck abroad for 10 years.
President Obama could simplify the process easier and waivers easier to obtain. He can order the USCIS to allow individuals who qualify for an unlawful presence waiver - the spouse or son or daughter of a U.S. citizen or permanent resident - to apply in the United States. Many undocumented immigrants have a good chance of getting the waiver but are afraid to leave the United States to apply for fear of getting stuck abroad. Allow qualified individuals to apply here and hundreds of thousands relatives of U.S. citizens and permanent residents could get legal status. They still would need to travel abroad for their immigrant visa interviews, but with an approved waiver, the vast majority would get their immigrant visas.
Further, Obama could establish more generous guidelines for granting waivers. In deciding who gets a waiver, administrative law requires the USCIS to consider the following criteria: (1) the presence of permanent resident or U.S. citizen family ties in the United States; (2) the applicant's ties outside the United States; (3) conditions in the country to where the applicant would need to return; (4) the financial impact of departure, and (5) significant health conditions, particularly when tied to unavailability of suitable medical care abroad. USCIS could simply issue guidelines that would clarify waiver qualifications. For instance, the USCIS should make clear that a person like Ricardo, if married to a U.S. citizen with more than 10 years here (assuming good moral character), should get an easy approval. Many people are shocked when I tell them how hard it is for the spouse of a U.S. citizen to get permanent residence. Congress would not need to act to help people like Roberto. Obama can implement these practices on his own.
Next, the President could follow his stated policy of focusing deportation efforts on individuals with criminal records. About 70% of the immigrants deported in the two years of the Obama administration have no criminal records. The courts are overwhelmed. It can take years for someone with a strong asylum or permanent residence case to get a hearing with an immigration judge. Obama should focus enforcement on those who most threaten the public safety of U.S. citizens and residents.
Finally, the Obama administration should implement a generous use of "deferred action status." That status allows an individual who is otherwise removable (deportable) to remain here with employment authorization. Usually, it is used as a last resort to prevent deportation. The Obama administration should develop criteria for deferred action status that reflects his stated views: that hardworking and successful undocumented immigrants, particularly college graduates, should be allowed to stay in the United States and contribute to our society.
Allan Wernick is an attorney and director of the City University of New York's Citizenship Now! Project. He is the author of U.S. Immigration and Citizenship - Your Complete Guide, Revised 4th Edition. Send questions and comments to Allan Wernick, Daily News, 450 W. 33rd St., New York, NY 10001. Professor Wernick's website: www.allanwernick.com.
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