Recommendations for congressional and administrative action to address the immigration bars
The Biden administration can take some steps now to provide relief to families who cannot access legal immigration benefits and are facing separation because of the bars. The administration should start by adding resources to clear the backlog of provisional unlawful presence waivers and allow more people to enter the consular process and adjust status.
The administration should also consider providing administrative relief, such as parole-in-place or deferred action, for individuals waiting in the backlogs. Providing parole-in-place would have the added benefit of resolving prior unauthorized entry, which could negate the need for the waiver at all, allowing them to adjust from within the U.S. and further reducing backlogs.
Finally, the administration should explore rulemaking to expand provisional processing to waivers for other inadmissibilities, so individuals can fully resolve these issues before leaving the U.S., reducing the risk that they will trigger additional bars after leaving and find themselves unable to return to their families.
Because the immigration bars were created by the 1996 IIRIRA law, Congress must act to fully reform them.
FWD.us supports the American Families United Act (H.R. 1698), which takes a narrow but impactful approach. This legislation would affirm that separation is a hardship for families, and it would allow immigration officers and judges to consider the impacts of the bars on U.S. citizen family members in cases involving undocumented immigrants, giving those officials more discretion to grant relief in such cases.
FWD.us also supports legislation to reform the laws around the bars themselves, including repealing the three- and ten-year bars, narrowing application of other bars for misrepresentation, and providing more access to waivers and reapplication. Such language is included in the Fairness for Immigrant Families Act (S. 819) and the Reuniting Families Act (H.R. 5560).
Reforming the bars would not change the underlying immigration laws involving unauthorized presence and entry, misrepresentation, etc.; it would simply balance the penalties in a way that promotes legal immigration and keeps families together.
Whatever their original intent, the bars have become an obstacle to legal immigration, have contributed to the increase of the long-term undocumented population in the U.S., and are leading to family separations. Congress and the Biden administration should begin work immediately to address and reform the immigration bars, including the three- and ten-year bars.