Laws often have unintended consequences. Sometimes, good government officials adopt interpretations of the law designed to mitigate those unintended consequences. But sometimes, the most anti-immigrant politician in recent memory directs his subordinates to adopt policies that undermine those mitigation efforts and harm United States citizens and lawful permanent residents in the process. Follow me into the immigration policy weeds and let me tell you about the stateside waiver process and how the Trump Administration is effectively nullifying it for a subset of immigrants.
In 1996, Congress overhauled the immigration laws and codified harsh consequences for immigration law violators. One of the provisions introduced that year makes a person ineligible for a visa for 10 years if he or she lives in the U.S. without legal status for more than one year and then departs the country. But here’s the kicker: a person who entered unlawfully generally must leave the U.S. in order to apply for legal status. This law, known as the 10-year bar, was intended to disincentivize immigrants from entering the U.S. unlawfully or overstaying after entering lawfully. Instead, it led many people who were already in the U.S. and who would otherwise qualify for a visa—based on, say, marriage to a U.S. citizen—to remain in the U.S. without documents. They made that choice because the idea of leaving the country and finding themselves separated from their loved ones for 10 years was terrifying and unacceptable. This should come as no surprise. Who would risk a decade-long separation from their spouse and children?
However, the government also has the power to waive this bar for an immigrant who can prove that his or her U.S. citizen or green-card holding spouse or parent (but not child, yet another instance of “anchor babies” being fake news) would suffer “extreme hardship” if the immigrant was forced to stay out of the U.S. for 10 years. Until a few years ago, immigrants had to wait in their native country for the government to adjudicate their waiver applications, which could take many months and often years.
Then, President Obama created a rule that allows people to do that waiting in the U.S., hence the name “stateside waiver.” The regulation said, essentially, that if you were subject to the bar, had an otherwise squeaky clean record, and were planning on departing the country to apply for a visa, you could apply for the waiver right here, together with your U.S. citizen or green-card holding family members. The immigrant would then leave the U.S. to apply for a visa (thereby triggering the bar) but would do so with the peace of mind that the waiver had already been provisionally granted. This shortened the time the immigrant was separated from their family to just a few days or weeks, and allowed the government to more efficiently and effectively plan and handle their workload. Not only did the stateside waiver prevent painful separation and disruption to American lives and communities, it also incentivized qualifying individuals to go through the process of legalizing their immigration status.
Today, the sensible stateside waiver process remains in effect, but some people can’t take advantage of it because of an arbitrary policy implemented by the Trump Administration. Individuals who are in immigration court—and right now there are roughly 600,000 such people—cannot file a stateside waiver. That’s actually been the rule from the beginning. However, immigration prosecutors would generally work together with immigration lawyers to close the cases of qualifying immigrants who intended to go through the stateside waiver application process. That allowed immigrants who could legalize their status to do so, and was one less case ICE officers had to deal with and immigration judges had on their docket. Now, however, immigration prosecutors have been instructed to stop closing these cases and to oppose all, or nearly all, requests to close cases for stateside waiver purposes. So what happens then? Some immigrants are resorting to departing the U.S. voluntarily or under a deportation order (which triggers an additional bar to returning), and then proceeding with the waiver or waivers from their home country. This means no choice but the lengthy separation and needless suffering for their U.S. citizen or green-card holding family members that used to happen before the waiver, because the application still takes months and months to decide. The stateside waiver was created to prevent exactly this needless separation and waste of government resources.
The Trump Administration should discontinue its injurious policy of opposing requests to close the immigration court cases of immigrants who qualify and seek to apply for stateside waivers. It’s a simple, compassionate, and practical change that will help the U.S. citizen and legal resident family members that depend on these immigrants.