The change takes effect March 4.
SCOTTSDALE, Ariz. — Hundreds of thousands of undocumented immigrants in the United States will have an easier time gaining legal status because of a policy change from President Barack Obama's administration.
The change takes effect March 4 and is aimed at undocumented immigrants married to U.S. citizens, such as Xochitl Hernandez, 33, who came to the U.S. illegally 14 years ago and now lives in this Phoenix suburb.
Soon, Hernandez and other undocumented immigrants married to U.S. citizens will be able to apply for a special waiver instead of having to leave the country and face tough penalties before obtaining their legal papers through a U.S. citizen spouse.
"This is really good news for me," said Hernandez, who has two daughters who are U.S. citizens, one with a severe physical disability. "I no longer will have to worry about going outside the country and being separated from my babies."
It is one of several major immigration-policy changes from the Obama administration in the past two years. The changes are intended to provide protection from deportation to undocumented immigrants with clean records and long ties to this country until Congress passes permanent immigration reforms.
The change also could have long-term political implications. Immigrant advocates have hailed the measure, and it could help boost Obama's popularity with the growing numbers of Latino and Asian voters as Congress gears up to address the long-simmering issue of immigration reform later this year.
However, some say the waiver change could make it harder for the president to negotiate a compromise with conservative Republicans, who view it as an end-run around Congress and a form of amnesty for illegal immigrants.
The Obama administration announced the waiver change in January 2012 and finalized it earlier this month.
Critics of the change are concerned that allowing undocumented immigrants to apply for waivers within the U.S. could invite marriage fraud and weaken long-standing penalties intended to discourage illegal immigration.
Under the change, undocumented immigrants married to U.S. citizens will be able to apply for a special provisional waiver from within the United States to avoid a 10-year ban from coming back to the U.S. as punishment for having lived here illegally for more than a year.
The 10-year ban was put into place as part of a 1996 law intended to discourage illegal immigration.
Hernandez and her husband, Richard Hernandez, 37, met at a restaurant where they worked as cooks. He is a U.S. citizen born in this country.
They married nine years ago. As the spouse of a U.S. citizen, Xochitl Hernandez is eligible to apply for legal permanent residency, known as a green card. But because she entered the U.S. illegally, she is first required to return to Mexico, her home country, to go through the interview process at the U.S. Consulate in Juarez.
But leaving the United States would have triggered the 10-year penalty.
Hernandez thinks she has a good shot at qualifying for a waiver because her two daughters, Karyne, 8, and Alexa, 3, both were born in this country, making them citizens.
To receive the waiver, Hernandez will have to prove that her separation would cause extreme hardship to a U.S. citizen family member.
Hernandez said her oldest daughter was born with a turned-in foot that limits her ability to walk and requires special care. Hernandez said she has to drive her daughter to and from school as well as to weekly therapy sessions and regular medical appointments.
In the past, Hernandez would have had to apply for the waiver in Mexico.
But her lawyer, Delia Salvatierra, told her that it could have taken up to a year for the waiver to be approved. And if the waiver were denied, Hernandez would have had to wait 10 years before re-entering the U.S. legally.
Until now, she figured she was better off remaining in the U.S. illegally than being separated from her family for a year or longer.
Under the new policy, Hernandez still will have to prove the 10-year ban would cause extreme hardship to her daughter. But now she will be able to apply for the waiver without having to leave the U.S.
If the waiver is approved, Hernandez would be able to return to Mexico with the waiver to go through the green-card interview process in Juarez.
Instead of a year or longer, she likely will have to wait less than two weeks to receive her green card, allowing her to return to the United States legally as a permanent resident, her lawyer said.
Focusing on families
Obama administration officials say the main goal is to prevent the long separation of families as undocumented immigrants try to legalize their status through a U.S. citizen spouse or parent.
"This new process facilitates the legal immigration process and reduces long periods of separation between U.S. citizens and their immediate relatives," Alejandro Mayorkas, U.S. Citizenship and Immigration Services director, said in a statement.
Department of Homeland Security officials have no estimate of how many undocumented immigrants may benefit from the change in the waiver policy.
But Muzaffar Chishti, director of the Migration Policy Institute's office at New York University, said hundreds of thousands of undocumented immigrants will more easily be able to become permanent residents as a result of the policy change.
The nonprofit research center in the District of Columbia proposed the change before the Obama administration implemented it.
"It's a big deal in many ways," Chishti said. "It does open up the possibility for people to apply for the waivers who may have been reluctant to in the past" because they didn't want to be separated from their families.
Critics say the waiver change shields undocumented immigrants from the penalties Congress put in place 17 years ago to discourage illegal immigration and punish illegal immigrants who have lived in the U.S. for more than a year. Even if they were denied, undocumented immigrants still would likely avoid the 10-year ban because they won't have to leave the country to apply.
What's more, Department of Homeland Security officials say they don't plan to go after undocumented immigrants denied waivers.
"It's allowing people to avoid this penalty," said Jessica Vaughan, director of policy studies for the Center for Immigration Studies, a Washington-based group that favors increased immigration enforcement and reducing overall immigration.
Vaughan said she also thinks the waiver change could lead to more marriage fraud because it will be easier for undocumented immigrants who marry U.S. citizens to avoid the 10-year ban.
She also is concerned that the government, under pressure to process an increase in waiver applications, will give less scrutiny to undocumented immigrants applying for green cards through U.S. citizen spouses.
"I think there is pretty high likelihood they are going to be rubber-stamped," she said.
The future of reform
The waiver change is one of three Obama administration immigration-policy changes to make it easier for certain undocumented immigrants to remain in the United States until Congress passes permanent reforms, Chishti said.
Another change directs Immigration and Customs Enforcement officers to focus on arresting and deporting illegal immigrants with criminal backgrounds over those with clean records and long ties here.
The third change is the Deferred Action for Childhood Arrivals program, which allows young undocumented immigrants brought to the United States as children to apply to live in this country and work temporarily without the threat of deportation. As of Dec. 16, more than 367,903 young undocumented immigrants have applied for deferred action since the government began accepting applications Aug. 15.
Chishti said the waiver change ultimately could help Democrats in the 2016 presidential election by making it easier for undocumented immigrants married to U.S. citizens to get permanent residence.
That could result in an increase in the number of Latino and Asian voters because permanent residents married to U.S. citizens are eligible to apply for naturalization after three years, Chishti said.
He pointed out that Latinos and Asians voted overwhelmingly for Obama in the November election.
"This (waiver change) has much more of a political payoff" than the other policy changes, he said.
Chishti said Obama's re-election has motivated Republican leaders in Congress to pass immigration reforms that include a legalization program to avoid turning Latino voters into "permanent Democrats."
However, Vaughan of the Center for Immigration Studies thinks the waiver change could backfire by making it harder for Obama to negotiate an immigration-reform deal with Republicans, especially in the House, where immigration reform faces more of an uphill battle than in the Senate.
"Every time he abuses his authority, he is making House Republicans less open to working with him," Vaughan said. "I think that is kind of poisoning the atmosphere for a compromise approach. He is burning bridges."
Meanwhile, Hernandez is busy preparing her paperwork so she can apply for the waiver in March, and after that, her green card.
"I feel very happy because I can see the time coming when I will have my papers in hand," she said.
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