Trump Administration Targets Obama-Era Immigration Loophole

New policy limits hardship waivers for violators, but critics suggest it doesn't go far enough

President Donald Trump’s administration this week moved to reverse his predecessor’s policies toward giving hardship waivers to foreigners who otherwise would be inadmissible under immigration law, but one expert questioned whether the new policy goes far enough.

Former President Barack Obama’s administration gave broader flexibility to U.S. Citizenship and Immigration Services adjudicators to decide that blocking a foreigner from America would create an “extreme hardship” on an American citizen.

“This restores or comes close to restoring the traditional definition of that hardship and makes it more of a unique situation,” said Jessica Vaughan, director of policy studies at the Center for Immigration Studies. “Like so many other things, this is a restoration of the way these things were handled.”

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The agency is accepting public feedback on the policy changes at this email address: [email protected] Commenters must state the title and section in the subject line, refer to a specific portion of the document and include any data or authority that supports the recommendation.

Vaughan said Obama-era rules made it much easier for foreigners seeking green cards to show that their departure would create an “extreme hardship” for an American. The previous administration also allowed foreigners to demonstrate that a legal permanent resident, and not just a citizen, would be burdened.

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“They really stretched the definition of ‘extreme hardship’ so that many more people could be eligible for it,” she said. “They could add up a lot of little hardships to make an ‘extreme hardship.'”

But Matthew O’Brien, director of research at the Federation for American Immigration Reform, said he worries that the updated policy manual published this week does not go far enough in limiting hardship waivers to truly extraordinary circumstances. He said the default position should be to deny hardship waivers since the people seeking them already have violated immigration law in one way or another.

He pointed to a passage in the updated manual indicating that USCIS employees “have the authority to construe ‘extreme hardship’ narrowly should they deem it wise to do so,” but that a “restrictive view” is not mandated.

“Why do we swallow the rule up with exceptions? Overall, this is a bad system.”

O’Brien said the confusing language should be changed to more clearly make a narrow interpretation be the policy of the government.

“Basically, it’s designed to lead the adjudicator to grant the waiver,” he said.

A hardship waiver allows the admission of foreigners who otherwise would be barred from immigrating because they have criminal records or previously have been deported. Vaughan said it was meant for truly extraordinary situations and not the normal inconveniences that someone’s absence would impose on U.S. relatives.

Statistics suggest that the loosened rules during the Obama administration had an impact. In fiscal year 2012, about 44,000 people who were barred for reasons other than criminal offenses sought hardship waivers. The government granted about 26,000.

That works out to an approval rate of about 59 percent, which is a rough estimate because it covers all approvals and applications recorded in the fiscal year, even though some of the approvals were on applications made in the previous year, and some of the applications were not processed until the following year.

By contrast, 37,000 people sought waivers in the first three months of the current fiscal year — October through December — putting fiscal year 2017 on a pace to far exceed the totals from 2012. At the same time, the government granted 30,600 waivers, a rough approval rate of 82.7 percent.

O’Brien told LifeZette that immigration rules lose their meaning if hardship waivers are granted frequently.

“Why do we swallow the rule up with exceptions?” he asked. “Overall, this is a bad system.”

O’Brien said be believes official instructions to adjudicators should more plainly align with the stated policies of the new president. He said supervisors should confront a culture at the agency that is biased in favor of the immigrant. Internally, he said, employees refer to the saying, “When in doubt, hand the waiver out.”

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The agency, O’Brien said, also has a financial incentive. He noted that it derives its revenue from fees; the more likely people feel that their waiver applications will granted, the more applications — the more fees — the agency will get.

“USCIS wants to process waivers like it’s on an assembly line in a factory,” he said. “These should be the extraordinary, not the rule.”

Vaughan agreed there is a cultural bias at the agency. She said she witnessed the same mentality first hand when she worked as a consular officer at the State Department.

“There’s no doubt over time at the USCIS there’s been an institutional bias to grant the wavier, that the system is almost rigged in favor of approval,” she said. “It’s true there has to be a culture change at the agency that can only be changed over time.”

(photo credit, homepage image: Gulbenk; photo credit, article image: Tomas Castelazo)

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