Rule would minimize family separation during green card process

The Fort Worth Star-TelegramJanuary 30, 2012 

Judith and her fiance, Alberto, faithfully put a portion of their paychecks in a savings account each month, but not so they can have an expensive wedding.

The Haltom City couple were preparing for the years that Alberto, an illegal immigrant, expected to have to wait in his native Mexico while the wheels churned in the process to obtain legal status. Judith is a naturalized citizen.

But a proposed shift in immigration rules announced this month by the Obama administration could change all that for the couple and thousands of others in similar situations.

The new rule would allow some undocumented spouses or children of U.S. citizens to remain here rather than being forced to return to their native countries during a crucial step in the pursuit of a green card.

Administration officials say the change is intended to reduce bureaucratic delays that cause the prolonged separation of family members.

For Judith and Alberto, it means they might be able to dramatically reduce the time Judith is here alone, paying their rent, car notes and utility bills.

Judith said she and Alberto, who came to the U.S. with his brother when he was 15, worry constantly about their separation.

"I worry about all the crime in Mexico, how we would make it financially without his income, how I would be able to go visit him ..." said Judith, who agreed to an interview on the condition that she and Alberto's last names not be published.

"Also, he has a daughter he helps support here. When I heard the rules could change, I was really excited that maybe we could do this without him being gone so long."

Advocates for immigrants emphasize that the change is in the process, not the law.

Still, they call it a sensible adjustment to a system that too often needlessly splits up families.

Backdoor amnesty?

Some Republicans have criticized the proposal, suggesting that the president is courting Hispanic votes in an election year. U.S. Rep. Lamar Smith, R-San Antonio, called the idea "backdoor amnesty." The rule change does not require the approval of Congress.

By law, illegal immigrants who have started families with U.S. citizens must return to their native countries before beginning the process to become a legal resident, an action that often takes years.

But once in their native country, the immigrants can receive a hardship waiver that allows them to return to the U.S. much more quickly. To get a waiver, they must prove that their absence will cause extreme hardship for their families.

The waiver can take months or longer to be approved or declined.

Under the rule change, undocumented spouses or children of citizens could get the waiver before leaving the U.S. They would still have to go back to their native countries but, with an approved waiver in hand, they could return in days or weeks.

Immigrants still have to meet the same qualifications to obtain visas, said Jaime Barron, a Dallas immigration attorney.

"They will still have to leave the United States but hopefully for a lot less time," Barron said. "This isn't amnesty; it's efficiency."

Proof of hardship

Tarrant County immigration assistance agencies report that families are already inquiring about the rule change, even though it might not take effect until the end of the year.

Judith, 25, said she and Alberto, 26, are marrying this year and have researched the proposed change since she learned about it on Facebook. She said she and Alberto both have full-time jobs.

The couple have spent about a year preparing paperwork, meeting with legal aid and saving money to obtain legal status for Alberto, she said.

A legal aid representative told them to prepare for the possibility that Alberto could be gone for several years.

"It was hard to hear," she said. "There are probably no jobs down there; how would he even work?"

Their effort is on hold now so they can see how the rule change plays out, she said. But they are eager for the process to start because Alberto's legal status leaves them in a state of limbo. He worries that a simple traffic stop will send him back to Mexico. If they try to buy a home, they can qualify for loans based only on her income, she said.

"Everything has to be in my name," she said. "It feels like we can't move forward."

To receive a waiver, illegal immigrants cannot have a criminal record and can have violated only immigration law.

They must prove that the separation would cause their U.S. citizen family members "extreme hardship." What that means exactly is difficult to explain because federal authorities have never defined it, said Veronica Garza, an immigration attorney at Catholic Charities Fort Worth.

Generally, families must prove that the consequences go beyond just sadness or financial challenges, Garza said. They usually must show that the separation would cause an array of hardships and provide evidence of it.

"You can't just say the separation is causing you extreme anxiety and you can't sleep," Garza said. "You would have to have a psychologist document that. Everything must be documented."

Federal officials say it is difficult to estimate how many people would be affected by the change. Last year, roughly 17,000 of the 23,000 requests for hardship waivers were granted.

In 2010, an estimated 11.2 million illegal immigrants were living in Texas.

Unanswered questions

The small lobby at Proyecto Inmigrante ICS in south Fort Worth was full Wednesday afternoon. Families, many with small children, waited their turn to speak with immigration experts like Douglas Interiano, the organization's executive director.

Clients bring an array of concerns and problems, but President Barack Obama's proposal has led to a flurry of inquiries.

The rule change, if it takes effect, will likely lead more people like Alberto to take steps toward legal status, Interiano said.

"In the past, families come into our immigration centers on a regular basis and we are not able to help them because they don't just want to be sent back to Mexico and wait there," he said.

The rule change would make it easier to help, he said.

That's not to say he can answer every question, he said. Many remain unanswered by federal officials. Will illegal immigrants in the U.S. still be in danger of deportation after their families apply for hardship waivers? If a request is denied, would the applicant face deportation?

"They will have already given over all of their information," he said. "Those are the questions people are asking us. We tell them to wait until the rule change is actually made and then call us back. We just don't know yet."

Fear and violence

For some families, the prospect of returning to crime-plagued Mexico causes as much anxiety as the fear of separation does. Border towns are racked by violence. Applications for hardship waivers are currently handled by the U.S. Consulate in Ciudad Juarez, a city nicknamed "the Murder Capital of the World."

Patty Gutierrez, a U.S. citizen, said safety concerns are one reason she and her undocumented husband haven't started working toward legal status. Her husband's parents brought him to the United States when he was 13 or 14. Now 30, he considers the United States his home, she said.

He has a job laying concrete for which he travels during the week.

"All he really knows now is the United States," she said. "His parents are here, so he doesn't even know anyone back there."

Her husband has two children of his own in Fort Worth, and he helps Patty raise her two kids, she said.

Her first husband died several years ago in a motorcycle crash.

The idea of separating her husband from the kids is unbearable, she said.

Meanwhile, Judith and Alberto wait to do whatever is necessary for him to earn legal status without having their life together torn apart along the way.

"We just want to feel secure about our future," she said. "That's all."

To read more, visit www.star-telegram.com.

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