Obama Bypasses Congress, Shifts Rules on Immigration Again

It took a year, but the Obama administration has now changed immigration rules to make it easier for illegal aliens with U.S. relatives to remain in the country while seeking a visa.

Illegal immigrants who have family members -- a spouse, children, or parents -- who are already U.S. citizens usually have to return to their home country in order to apply for a visa to stay in the U.S. Those who had already been in the U.S. for more than 6 months illegally would also have to apply for a waiver to ignore their unlawful presence before their visa application could be considered.

In practice, this meant that those wishing to remain in the U.S. were forced to leave the country for as long as a year while waiver paperwork was processed. It also meant that many illegal immigrants refused to take the risk of applying for legal status when they had passed the 6-month mark, since applying for status meant leaving the country for an extended period of time and being separated from family members who were citizens.

Last January, the Department of Homeland Security began the process of amending the rules affecting those who have family members who are U.S. citizens. A proposed rule change was published in the Federal Register on April 2, 2012, and after taking comments the final rule was published today with a few modifications.

The new rule allows illegal immigrants to apply for a provisional unlawful presence waiver while still in the U.S. (rather than having to leave the country to do so). As the rule explains, the change "is expected to result in a reduction of the time that U.S. citizens are separated from their immediate relatives, thus reducing the financial and emotional hardship for these families."

The rule published today includes a summary of comments received by DHS on the proposed change during the comment period last year. It says most of the comments "came from supporters of the proposed rule
who agreed that it would promote family unity." However, there were others who disagreed, including those who argued "that the Executive Branch did not have the legal authority to make the proposed changes without approval from Congress."

The rule then addresses the question of DHS's legal authority directly, stating, "The provisional unlawful presence waiver process is not a substantive change to the immigration laws but a procedural change in the way that a specific type of waiver application can be filed with USCIS." In other words, DHS is claiming this is a narrowly-tailored procedural change, not a change in national policy subject to Congress' oversight.

Looking over the last few months, it's not hard to determine that this rule change, like the one that instituted the DREAM act prior to the election, is about politics as much as procedure. In a supposedly off-the-record interview with the Des Moines Register in October, Obama said he would focus on immigration if reelected:

The second thing I’m confident we’ll get done next year is immigration reform. And since this is off the record, I will just be very blunt. Should I win a second term, a big reason I will win a second term is because the Republican nominee and the Republican Party have so alienated the fastest-growing demographic group in the country, the Latino community.

This rule change, which will take effect in 60 days, is part of Obama's attempt to honor the political bargain he made back in 2008 and reaffirmed again last year. While the careful wording of the DHS rule frames this as a matter of procedure rather than politics, those are just the necessary stories the administration is forced to tell in order to get this change done without Congressional oversight.


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