by Daniel Costa
Recently, Cecilia Muñoz, the White House’s point person on immigration, spoke with Univision’s Jorge Ramos on Al Punto to discuss the recent announcement that US Citizenship and Immigration Services (USCIS) will propose and implement a new rule that would promote family reunification between the unauthorized minor children and spouses of U.S. citizens.
The rule (technically a regulation) will simply allow the unauthorized spouse or child to apply for an “extreme hardship” waiver while still in the United States, before returning to their home country to apply for permanent residency (otherwise known as obtaining a “green card”).
Without this waiver, the green card applicant would be barred from re-entering the U.S. for 3 or 10 years while their application is processed, as punishment for having entered the country illegally. Instead, grantees of the waiver would be allowed to return to their family in the U.S. while their legalization is processed. These waivers exist under the current legal and regulatory framework – but they can take years to process and are far from a sure bet.
This motivates many unauthorized migrants to remain in the shadows even if they have a legal right to become lawful permanent residents of the U.S. and eventually naturalized citizens.
Immigration and immigrant advocates and editorial boards have lavished praise on the President for announcing this policy, and I would like to add my own voice to that chorus here. But the implementation of this policy deserves a closer look. Because most of the public is probably unfamiliar with the administrative rulemaking process, I believe this aspect of the discussion has been left out.
The time to announce such bold and useful administrative policies like this one and the one announced last June on prosecutorial discretion that offers administrative relief for non-criminal, lower-priority migrants in deportation proceedings – and to attempt to implement them – should and could have been as soon as the administration knew that a more comprehensive legislative reform for immigration was unattainable.
Arguably, this was foreseeable soon after the drawn-out health care debate and legislation was passed in early 2010. But unfortunately, trying to put these policies into practice 12 and 18 months before the end of a presidential term makes their success less likely.
On this note, the tortured path to implementing the prosecutorial discretion policy has been instructive. Half a year after the announcement of this (entirely praiseworthy) policy, this survey and report demonstrated that there have been few concrete changes in practice, and where the policy has in fact been implemented, it has been done so inconsistently. Add to this the fact that – as the New York Times reported this week – the union representing the employees of Immigration and Customs Enforcement (ICE), the agency responsible for implementing the policy, do not agree with it and are resisting the administration’s attempts to train officers to carry it out properly. Some have argued that this amounts to insubordination
What’s ultimately clear is that it will continue to delay the policy for even longer.
Although it’s not ICE, but USCIS – which is a different Department of Homeland Security (DHS) sub-agency, and hopefully one that is less hostile to the President – that’s tasked with proposing and implementing the new waiver rule, the example above shows that even the best intentions and policies can be thwarted unexpectedly. Because of USCIS’s role and function as a citizenship and benefits granting agency, it is generally friendlier towards pro-immigrant policies. While that’s encouraging, there’s a long way to go before we see any real change in practice.
USCIS Director Alejandro Mayorkas expressed to the NY Times his hope that the waiver rule would be issued “before the end of this year,” although it was not made clear whether he was referring to the final or proposed rule. Thus, let’s take a look at what would the timing of this entire process could ultimately look like.
USCIS recently published a “notice of intent” to publish a proposed rule. It still has yet to publish the actual proposed rule (i.e., regulation), which will govern the waiver procedure.
No one can say how long it will take to draft and issue the proposed rule, but it could easily take a few months. After that, the public will have the opportunity to submit comments to the government on what it thinks of the rule. The administration will have to set out how long this “notice and comment” period will last. It’s also unclear how long this will be set for, but a reasonable guess would be 60 or 90 days. So even under the best of circumstances, these two steps will take us to about the middle of 2012.
After that, the government has to consider all of the comments (possibly hundreds or thousands of them) from the public in the drafting of the final rule. Then the final rule is published and a date is set for it to come into force. How long this will take is anyone’s guess, but regardless of whether Director Mayorkas meant USCIS will publish a proposed or final rule by the end of the year – even under the best of scenarios, the process still be running its course during and well beyond the election in November. And even if everything goes smoothly and the final rule is effective sometime soon after the election, it will still take months for the process to be implemented by immigration officers and adjudicators, and it will take many more months for analysts to determine whether the waivers for immediate family members are being granted properly to those who deserve them.
If President Obama loses the election, the new waiver rule will probably never see the light of day. If, for example, front-runner Mitt Romney were to win the election, he would have the authority to easily and immediately repeal it. Candidate Romney’s recent hostility to even the most vulnerable and sympathetic group of unauthorized migrants – the young students and military service members who would be eligible if the DREAM Act were passed – has been well documented. It’s not hard to imagine what his course of action would be in this case.
Furthermore, based on numerous comments throughout this year’s presidential campaign, there’s no reason to believe that any of the current Republican candidates wouldn’t defer to the guidance of the current Chair of the Judiciary Committee in the House of Representatives (which has jurisdiction over immigration policy), Lamar Smith, who fiercely opposes the new waiver rule and originally proposed the law that requires unauthorized migrants to be barred from the country for 3 or 10 years, even when they have the right to become a lawful permanent resident.