Immigration: Family Reunification Waiver Rule

US Citizenship and Immigration Services has just published the final rule for the Family Unity Waiver on January 3, 2013.  This is a new process which will allow thousands of spouses and children of US citizens to come forward and obtain their green cards. We do not yet have the regulations, instructions or new forms for this Waiver, but we are expecting to receive them shortly.

The Obama Administration wants to promote Family Unity.  Spouses of US citizens are generally given special preference in legalizing their status. However, many thousands of families have a US citizen spouse, married to an undocumented spouse who entered the US without any type of visa.  These undocumented spouses must legalize their status at the US Consulate in their home country, as a type of punishment for having entered the US without any visa at all. 

The problem comes with the 1996 “Illegal Immigration Reform and Immigrant Responsibility Act” (IIRAIRA) IIRAIRA which was partly enacted to “punish persons” who were unlawfully present in the US.  IIRAIRA has a provision requiring anyone who was in the US in unlawful status for more than
one year, and left the US for the personal interview at the US Consulate, to
remain outside the US for a period of 10 years. (If the person was in unlawful status for more than 6 months, but less than one year, and leaves the US, the bar is for 3 years)

There is a possible Waiver of this 10-year bar, but up until now, the Waiver had to be filed at the US Consulate abroad.  The result was that the undocumented spouse had to depart the US for the personal interview at the US Consulate, and hand in the Waiver packet subsequent to the interview.  Reviews of the Waiver packets typically took more than 10 months, and easily up to 18 months or more to review at the US Consulates abroad, leaving families separated for years at a time.

The new Family Reunification Rule:

US Citizenship and Immigration Services (USCIS) is creating the new form and new regulations for this new process.  As of now, the following appear to be the criteria in order to qualify to qualify for the new Provisional Unlawful Presence Waiver:

1 Applicant must be an immediate relative of a US citizen (spouse, child),

2 Applicant must only be inadmissible due to unlawful presence in the US of more than 6 months

3 Applicant must demonstrate that denial of the Waiver would result in extreme hardship to his/her US citizen spouse or parent

4 Applicant must notify the Department of State’s National Visa Center that he/she will be seeking a provision waiver from USCIS.

The Application for the Provisional Unlawful Presence Waiver can be filed in the US starting on March 4, 2013.  If approved, the Applicant would then have the US Consulate in his/her own country schedule the personal immigrant visa interview abroad.  This new pre –approval Waiver process is intended to significantly reduce the amount of time US citizens are separated from their qualifying relatives.

The new Family Unity Waiver should affect thousands of families, and should reduce the number of undocumented persons in the US.