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Obama's Stateside Family Unity Waiver: How an Immigration Processing Tweak Will Keep American Families Safe And Together

01/15/2013 11:44 am ET | Updated Mar 17, 2013

When immigrants enter the U.S. without a visa or overstay a temporary visa it can lead to some pretty harsh consequences. In addition to arrest, detention and deportation, a noncitizen unlawfully in the U.S. for more than 180 days can be banned from again setting foot on American soil for up to 10 years -- even if he or she is married to a U.S. citizen.

Formally known as the "unlawful presence ground of inadmissibility," the ban was embedded into the law as part of the immigration amendments of 1996. Its only exception is a narrow family unity waiver for immigrants who can prove their banishment will result in extreme hardship to their U.S. citizen or legal resident husband, wife or parent. It was touted by supporters as a powerful incentive for unlawful immigrants to depart the U.S. and punishment for those who didn't.

It didn't quite work out that way.

In the decade that followed the undocumented population swelled to 11 million people, most of whom are likely subject to the 10-year unlawful presence ban. Of those, it's impossible to say how many might qualify for the family unity waiver. But what's clear is that relatively few apply for it, opting instead to remain in the shadows.

That's because to apply for the family unity waiver a would-be immigrant must wait abroad for months, sometimes years, while the Department of Homeland Security considers the waiver application. All the while the applicant is separated from their family in the U.S., with no guarantee of returning to their loved ones for at least a decade. To make matters worse, some immigrants must apply for their waivers in dangerous places like Ciudad Juarez, Mexico, risking serious injury or death while their family unity waiver winds its way through the bureaucratic machinery.

What supporters of the unlawful presence ban overlooked in 1996 was that few parents would ever chance prolonged separation from their spouses and children, even if that meant a shot at obtaining legal permanent residence in the U.S. While most undocumented immigrants long to comply with the law and earn legal immigration status, they also want to keep their families safe and together.

Ironically, instead of promoting the departure of undocumented immigrants from the U.S., the unlawful presence ban presents them with a cruel Hobson's choice. Does an undocumented wife leave her U.S. citizen husband and children to apply for a visa overseas knowing there is a strong chance she will not see them for months, years, or perhaps even a decade? Or does she take refuge in the shadows, nurturing her family while living in constant fear of arrest and deportation?

Thankfully, there may be bit of relief in sight for some undocumented immigrants. Early last year the Obama administration announced a processing change that will allow qualified immigrants to apply for a provisional family unity waiver in the U.S., before they leave to apply for their green card in their home country. The processing tweak, which will go into effect on March 4, will allow applicants to remain in the U.S. with their families while the government considers their family unity waiver, reducing the length of time U.S. citizens are separated from their husbands, wives and children. It will also allow U.S. consulates abroad to better focus on keeping out criminals, terrorists, and others who would do America harm.

To be sure, stateside processing of family unity hardship waivers does not change the law -- only Congress can do that. Foreign nationals who remain in the U.S. unlawfully will still be barred from returning for up to a decade. Nor does the processing tweak ease the burden on those who apply for a family unity waiver.

What it does is strike a common-sense balance between rigorous enforcement of the immigration law and the need to keep America's families safe and together.

And that's smart enforcement.