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:
Applicant must be
an immediate relative of a US citizen (spouse,
only be inadmissible due to unlawful presence in the US of more than 6 months,
demonstrate that denial of the Waiver would result in extreme hardship to
his/her US citizen spouse or parent
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.