A new immigration rule makes it easier for undocumented workers to return to the U.S. to wait for visas.
Photo Illustration/Thinkstock
A new immigration rule makes it easier for undocumented workers to return to the U.S. to wait for visas.

Story highlights

New rule can reduces time U.S. citizens are separated from undocumented relatives

"I used to have nightmares about Lucio and I separating. I wouldn't know what to do without him"

National Asian Pacific American Women's Forum applauds Obama administration

"This is clearly a step in the right direction but a lot more work needs to be done"

Vera has found a good man.

He loves her and her 16-year-old daughter. His work provides their income and allows her to attend nursing school. They married two years ago and their future was set. Except for one thing. Lucio came to the United States illegally and has been living as an undocumented immigrant. At any time he could be deported to his native Peru.

Although undocumented, Lucio was able to find work as a contracting muralist in Houston, where Vera – a U.S. citizen – was born and raised. He learned to speak English in less than three years for work and the need to communicate with the “love of his life” as he put it.

“I love this country and have made it my home. I want to be able to contribute to this country and give back in any way I can,” said Lucio. He said he got his Tax ID number as soon as he started working because he wanted to get started on the right path and pay his taxes.

Vera also depends on Lucio for emotional support as she suffers from PTSD. She is a victim of sexual molestation and suffered mental and physical abuse while growing up.

They’d always planned for Lucio to apply for citizenship, but were afraid of going into the system that would require him to return to Peru for up to 10 years.

“I used to have nightmares about Lucio and I separating. I used to worry so much about it,” said Vera, “I wouldn’t know what to do without him. If he left I wouldn’t know how to run his business.”

Now Vera and Lucio, whose last names we’ve agreed to withhold to protect their identity, are entering that system, hopeful that they won’t be separated.

Come March, many mixed-status families will breathe a sigh of relief knowing they won’t have to remain separate for a long period of time while they apply to become legal residents in the U.S., according to a new rule made by the Department of Homeland Security announced last week.

The new rule does not guarantee legal status to the undocumented immigrant – the family still has to prove that the deportation of the spouse or parent would cause “extreme hardship” to the U.S. citizen.

“I’m so relieved he gets to stay here while we go through this process, it makes a big difference,” Vera said.

Sarah Monty, Lucio’s immigration lawyer, is optimistic that his waiver will be approved.

USCIS Director Alejandro Mayorkas said in a press release: “The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this rule achieves.”

“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 U.S. to become lawful permanent residents must leave the country and obtain an immigrant visa in their home country.

Those who have accrued more than six months of unlawful presence while in the United States must obtain a waiver to overcome the unlawful presence bar before they can return to the U.S. after departing to obtain an immigrant visa.

“This final rule facilitates the legal immigration process and reduces the amount of time that U.S. citizens are separated from their immediate relatives who are in the process of obtaining an immigrant visa,” said Secretary of Homeland Security Janet Napolitano in a press release.

Monty fears that because the eligibility is so specific to a certain group of people, many undocumented immigrants are going to be confused as to why they do not qualify and suggests they seek out legal counsel. She said the new regulation was a huge step forward and sadly long overdue.

Undocumented immigrants married to a U.S. citizen are the most vocal group said Monty, and if this provision works, this might extend to other groups.

The new rule does not apply to U.S. children with an undocumented parent. In other words, you cannot give birth to your own waiver. The child, whether undocumented or not, must have a U.S. citizen as a parent.

A legitimate concern for many – if the waiver is denied – is that individuals are also putting the government on notice that an undocumented spouse or parent lives in the U.S. because it might put themselves at risk for deportation.

“Applying for this waiver means that you are putting yourself out there. ICE told me that their priorities are to go after criminal aliens,” said Monty, but added, “Undocumented immigrants without a criminal history do not need to worry.”

The National Asian Pacific American Women’s Forum applauds the Obama administration for their rule change.

NAPAWF teamed up with the National Domestic Workers Alliance to advocate to keep women and their families together at the We Belong Together campaign. During the past two Christmases they organized thousands of letters from children to be sent to congress asking them to stop deporting their parents.

“This is clearly a step in the right direction, but a lot more work needs to be done,” said Wida Amir, Immigrant Rights Program Director at NAPAWF in an interview, “We need a broader comprehensive immigration reform that provides a pathway to citizenship. Congress needs to address the whole package.”