The rule issued Wednesday by the Department of Homeland Security aims to reduce the time illegal immigrants are separated from their U.S. families while seeking legal status, officials said.
Beginning March 4, illegal immigrants who can demonstrate that time apart from an American spouse, child or parent would create "extreme hardship" can apply for a visa without leaving the United States. Once approved, applicants would be required to leave briefly in order to return to their native country and pick up their visa.
Sources said that the administration might expand the changes to include relatives of lawful permanent residents.
The change, first proposed in April, is the latest move by the administration to use executive powers to revise immigration procedures without Congress passing a law. In August, the Obama administration launched a program to halt the deportation of young people brought to the U.S. unlawfully as children.
"This is a continuation of usurping Congress' control over immigration," said Mark Krikorian, executive director of the Center for Immigration Studies, a think tank in Washington that supports tighter controls on immigration. "This waiver rule is a small piece of this broader effort to go around Congress."
The new procedures could reduce a family's time apart to one week in some cases, officials said. In recent years a few relatives of U.S. citizens have been killed in violence in foreign countries while waiting for their applications to be resolved, a process that could take a year or longer.
"It's going to be a better future for me," said Analy Olivas, 21, from Claremont, Calif., who crossed the border illegally from Mexico with her family when she was 8 and eventually married a U.S. citizen. She didn't think she could bear to be separated from her 4-year-old son, Naythan, for an extended period, adding, "If I kept on going through the process, I was going to have to leave the country. I wasn't ready for it."
"The change will have a significant impact on American families by greatly reducing the time family members are separated from those they rely upon," said Alejandro Mayorkas, director of U.S. Citizenship and Immigration Services. Wait times will be "drastically reduced," Mayorkas said.
The immigration agency does not provide applicants with a specific definition of "extreme hardship," despite requests from legal aid organizations to clarify the phrase. The agency "looks at the totality of the applicant's circumstances and any supporting evidence," according to the final rule posted in the Federal Register on Wednesday.
Immigration officials said they have no plans to add staff to process what could be a large number of new hardship-waiver applications. The agency received 24,780 such applications between September 2011 and October 2012.
Until now, officials said, many immigrants who might seek legal status have not pursued a hardship waiver of strict U.S. immigration laws out of fear they will be rejected and stuck outside the country.
Someone who has overstayed a visa for more than six months is barred from re-entering the U.S. for three years; those who overstay more than a year are barred for 10 years.
Many Mexicans applying for a visa must report to the U.S. Consulate in Ciudad Juarez, one of Mexico's most violent cities. Fearful applicants often spend weeks in hiding while waiting for appointments with consular officials. U.S.-born spouses also must travel to Juarez for interviews to determine whether marriages are valid.
The wait proved too long for Luis Luna, who was born in Mexico but crossed illegally into Southern California last year. He married his U.S.-born high school sweetheart, but became desperate as weeks in Juarez turned to months. He was bullied by thugs, harassed by cops and witnessed several fatal shootings.
"The days were so long," said Luna, who rented a $70-per-month room for several months while waiting for his visa to be processed. Luna, penniless and fearful, finally tried to re-enter the U.S. by falsely claiming U.S. citizenship with a Washington state driver's license. His application was eventually rejected. He is now back in California.
The possibility of having to leave the country for Juarez long kept a woman named Andrea from applying for U.S. residency, even though she is married to a U.S. citizen and her 4-year-old daughter is also a citizen. The 30-year-old, who lives in Orange, Calif., asked not to be further identified because she is in the country illegally.
"I'd rather have a wife without papers than a dead wife," Andrea said her husband often told her.
Those who applied for a hardship waiver in the past but were denied will be eligible to apply again under the new rule, officials said. Family members who have been in deportation proceedings that were suspended will also qualify. But someone who has been deported before, or is facing a final deportation order, is not eligible.
Los Angeles immigration attorney Carl Shusterman hailed the end of what he called a "totally crazy system."
"It's going to keep families together who otherwise would have to go out of the country and sometimes wait over a year, separated," Shusterman said.
Jessica Dominguez, an immigration attorney whose clients are mostly from Mexico and Central America, said Latinos in Southern California are celebrating the change.
"This is going to affect thousands of families," Dominguez said.
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