By Luis Alonso Lugo and Amy Taxin
Associated Press 

January 7, 2012

The Obama administration proposed a rule change Friday to reduce the time that spouses and children who are illegal immigrants are separated from their American relatives while they try to gain legal status in the United States.

Currently, many illegal immigrants must leave the country before they can ask the government to waive a three-to 10-year ban on legally coming back to the U.S. The length of the ban depends on how long they have lived in the U.S. without permission.

The new rule would let children and spouses of citizens ask the government to decide on the waiver request before they head to their home country to apply for a visa.

The illegal immigrants would still have to go abroad to finish the visa process, but getting a provisional waiver approved in advance would cut the time that they are out of the country from months to days or weeks, said Alejandro Mayorkas, director of U.S. Citizenship and Immigration Services.

The goal is "to minimize the extent to which bureaucratic delays separate Americans from their families for long periods of time," Mayorkas said.

Austin immigration lawyer Paul Parsons applauded the proposal. "This would be an overdue change to help unify families," he said. "The present system is far too harsh."

Parsons said he's sent many clients to U.S. consulates in other countries to seek waivers to the mandatory ban.

They have to leave their families with no assurance the waiver will be approved — in effect risking up to a10-year separation from their families or forcing their family members to leave the U.S. to join them. And if the waiver is approved, it can take months and in some cases more than a year, Parsons said.

Becoming a legal permanent resident allows immigrants to legally work, obtain a driver's license and eventually apply for citizenship, he said.

"It makes all the difference in the world for a spouse of a U.S. citizen or a child of a U.S. citizen to qualify for lawful status as opposed to living in the shadows," Parsons said.

The waiver shift is the latest move by President Barack Obama to make changes to immigration policy without congressional action. Congressional Republicans have criticized the administration for policy changes they describe as providing "backdoor amnesty" to illegal immigrants.

The proposal also comes as Obama gears up for a re-election contest in which the support of Hispanic voters could prove a determining factor in a number of states. The administration hopes to change the rule later this year after taking public comments.

Rep. Lamar Smith, R-San Antonio, chairman of the House Judiciary Committee, accused the Obama Administration of "bending long established rules" to favor unlawful immigrants.

"This proposal from the Obama administration comes with no surprise considering their abuse of administrative powers," Smith said. "President Obama has already granted backdoor amnesty to potentially millions of illegal immigrants without a vote of Congress."

Immigrants who do not have criminal records and who have only violated immigration laws can win a waiver if they can prove their absence would cause an extreme hardship for their American spouse or parent. The government received about 23,000 hardship applications in 2011, and more than 70 percent were approved.

Parsons said the "extreme hardship" standard is difficult for immigrants to meet.

The fact that they would be separated from their families for years isn't enough, Parsons said, nor is any financial hardship to their family caused by their absence. One example of an extreme hardship, he said, would be a serious medical problem that couldn't be adequately treated in the person's home country.

The new rules do not apply to extended families of U.S. citizens. And they do not apply to undocumented parents of U.S.-born children.

Laura Barajas, a 42-year-old stay-at-home mom in Orange County, Calif., is due to travel to Juárez in two weeks to try to get her papers. She and her U.S. citizen husband are trying to stay positive, but she is afraid to leave him and their two young children behind.

"I don't want to be separated for a long time from my children," said Barajas, who came to the U.S. illegally to find work, then met her future husband and stayed. "I'm not going to risk taking them to a place that I don't even know after 18 years."

Kelly Alfaro, of Washington state, said her husband, Guillermo, waited in Mexico for eight months last year after he had his visa interview in Juárez.

"I was terrified for his safety because I know how dangerous it is there and I had no way of knowing how long he would have to stay in Mexico," she said.

Additional material from American-Statesman staff writer Dave Harmon and the Houston Chronicle.