Obama to Waive Unlawful Presence for Certain Illegal Aliens

The Obama administration has taken yet another executive action to unilaterally rewrite our immigration laws. This time, through a U.S. Citizenship and Immigration Services (USCIS) final rule, the Obama administration announced it is significantly expanding the provisional waiver of inadmissibility for certain individuals living in the country unlawfully. (Law 360, Aug. 2, 2016) In doing so, President Obama is forgiving the unlawful presence of an individual who is otherwise eligible for a green card.

Generally, aliens who have been residing in the country illegally long term cannot simply return to the country if they leave. Immigration and Nationality Act Section 212(a)(9)(B) says that aliens who have been illegally present in the U.S. between six months and a year may not be readmitted for three years; it also says aliens who have been illegally present in the U.S. for over a year may not return for ten years. (INA § 212(a)(9)(B)(i)) Congress did grant the Executive Branch the authority to waive an individual’s unlawful presence if they have an immediate relative U.S. citizen or green card holder and the separation caused by the 3- and 10- year bars would pose “extreme hardship” to the relative. (INA § 212(a)(9)(B)(v))

What President Obama has done is take this narrow statutory authority and unilaterally expand it to all categories of visas. Now, any person living in the U.S. unlawfully and has a citizen or LPR immediate relative can apply to have the 3- and 10- year bars waived when their green card (family-based, employment, or visa lottery) becomes available. Once granted the provisional waiver, they simply leave the U.S. to claim their green card in their home country and then can immediately return to the U.S. with lawful immigration status. While still subject to the “extreme hardship” requirement, it is important to note that this term is not defined and the Obama administration is expected to take an expansive interpretation of the phrase. Indeed, the announcement accompanying the final rule said, “The provisional waiver process promotes family unity by reducing the time that eligible individuals are separated from their family members while they complete immigration processing abroad, while also improving administrative efficiency.” (81 Fed. Reg. 50244, July 29, 2016)(emphasis added)

The impact of this rule is clear. Congress enacted the 3- and 10- year bars to deter illegal immigration. By significantly expanding the provisional waiver of unlawful presence inadmissibility, the Obama administration is downplaying the severity of living in the country illegally. Now, any individual with a citizen or LPR immediate relative has the incentive to live in the U.S. unlawfully instead of remaining in their home country until their green card becomes available because they know the Obama administration (and possibly future administrations) will waive their unlawful presence.