The Obama Administration adopted a rule that allows illegal aliens in the process of obtaining lawful permanent resident status to remain in the country while their application is pending if they can demonstrate the time abroad would impose “extreme hardship” on family members who are U.S. citizens. Although the adjustment of status must still be obtained at a consulate in their country of origin, the provisional unlawful presence waiver created under the rule makes it easier for illegal aliens to bypass periods of barred re-entry.

“The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this rule achieves,” USCIS Director Mayorkas said. “The change will have a significant impact on American families by greatly reducing the time family members are separated from those they rely upon.”

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents (LPR) must leave the U.S. and obtain an immigrant visa abroad. But if an illegal alien, for example, overstayed a visa for between six months and one year, the individual is barred from reentering the U.S. for three years. Those who overstay more than a year are barred for 10 years. A hardship waiver currently exists but must be filed from abroad. As a result, many did need seek LPR status out of fear they would be rejected and stuck outside the country.

Under the new USCIS rule, which takes effect on March 4th, certain illegal aliens can apply for a provisional unlawful presence waiver while remaining in the U.S. An applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse, child or parent. The rule does not include guidance on what constitutes “extreme hardship.”

Illegal aliens are still required to attend consulate interviews in their countries of origin at the appropriate time but the rule could reduce a family's time apart to one week in some cases.

The rule also extends eligibility to those who have had their hardship waivers denied in the past and to beneficiaries of prosecutorial discretion under the Deferred Action for Childhood Arrivals program and the Administration’s case-by-case review of pending deportation cases.

An article by the L.A. Times suggests the rule could benefit as many as 1 million illegal aliens. The Administration may expand the changes to other categories of aliens seeking to immigrate to the United States.

Opponents of the change see the rule as the latest move by the Administration to use executive powers to revise immigration procedures without congressional approval. Mark Krikorian, executive director of the Center for Immigration Studies, said "This is a continuation of usurping Congress' control over immigration. This waiver rule is a small piece of this broader effort to go around Congress."

Read a related L.A. Times article or the USCIS release.

Illegal Immigration
prosecutorial discretion

Updated: Fri, Jan 4th 2013 @ 10:05am EST