The rule largely eliminates a Catch-22 faced by those who entered the country illegally but want to establish legal status.
Currently in most cases, illegal immigrants must leave the United States and apply for a visa at a U.S. consulate in their home country. But once they step foot outside the United States, they're immediately subject to either a three-year or 10-year ban on returning.
Although they could apply for a waiver of that ban, the application process alone could sometimes take upward of a year, forcing the undocumented immigrants to wait in their country of origin during that stretch.
Under the new provision, those eligible can apply for the unlawful presence waiver in the United States before returning to their home country to complete the application process. Once approved, the waiver gives them greater assurance to set up an appointment in their country of origin for an interview designed to determine visa and ultimately legal permanent resident eligibility.
"In a matter of weeks, not months," USCIS Director Alejandro Mayorkas said.
That was exciting news for Carmen Thompson.
The 39-year-old mother of three has been in Utah illegally for 18 years. Married to a U.S. citizen for eight years, she said that before the announcement of the rule, the prospect of applying for the waiver in her home country of Mexico was simply terrifying.
"We were scared because we didn't really know what would happen," she said. "It could be six months, five years, 10 years before I could get back maybe."
Her husband, Jeff Thompson, said if she were to be stuck in Mexico, their three children would likely live with her. That separation, he said, would be devastating to him as a father.
"I'd be missing out on their lives," he said. "I'd get down there when I could, but I'd have to be working and help pay the bills and make a living to support my family."
USCIS officials said that before the new policy, the agency averaged between 22,000 and 25,000 applications for waivers per year. In 2011, the approval rate for waivers was about 84 percent. In 2012, it was 88 percent.
To be granted the waiver, eligible applicants must prove to USCIS that being absent from their home in the United States would cause extreme hardship on the illegal immigrant's U.S. citizen or lawful permanent resident parents or spouse.
Tim Wheelwright, a Salt Lake City-based immigration attorney, said the biggest barrier to having eligible applicants come forward remains the fear they may not meet the extreme hardship requirements established by USCIS.
He said the requirements aren't defined by "a real bright line" but instead are "loosey-goosey" and center on how the removal of the illegal immigrant would harm the U.S. citizen family economically. Other areas that are reviewed include health, the illegal immigrant's fluency in the language of their home country and overall disruption in the family life.
Mayorkas said the standard for extreme hardship hasn't changed with the inclusion of the new rule.
Ron Mortensen, co-founder of the Utah Coalition on Illegal Immigration, said though he didn't entirely disagree with the waiver rule, he questioned its fairness. He said it still appears to reward those who "jumped ahead in line," and he also worries it won't address those who have used stolen Social Security numbers to work illegally in the United States.
"I always come back to this thing: If the person has been using the fraudulent Social Security number of a kid, I'd hope they'd pick that up and somehow take that into account," Mortensen said. "If not, that's letting [the illegal immigrant] off the hook for destroying that kid's life."
Utah Attorney General Mark Shurtleff, a Republican who has been a vocal supporter of immigration reform, said he was "proud" of Homeland Security Secretary Janet Napolitano "for supporting family unity and protecting the rights of U.S. citizens by limiting the time their close family members are separated from them out of country during the waiver process."
Mayorkas said USCIS didn't have an estimate on how many applicants they'd likely see when the rule takes effect. He also said applications submitted before the March 4 kick-off date won't be accepted.
Immigration policy change
To read more about the new policy, go to http://1.usa.gov/X1EBUs.