Family Unity Waivers: Updated rule allows more families to stay together

August 30, 2016

Family Unity Waivers

Updated rule allows more families to stay together

(updated August 2016)

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The problem:  Families punished for doing the right thing

On August 29, 2016, a new federal regulation took effect that will help many immigrants who qualify for legal status, but would be torn apart from their families if they try to apply.  This rule expands a 2013 rule to include more families:

  • Many immigrants who qualify for green cards must leave the US and process their applications at a US consulate in their native country.
  • Once they leave the US, current law bars them from reentering the US for up to 10 years.
  • These immigrants can apply for waivers from these bars if they can show that being barred will cause “extreme hardship” to a US citizen or permanent resident spouses or parents.
  • However, applications for these waivers had to be filed after the immigrant has already left the US. If the request is denied, the immigrants are stuck outside the US, separated from their families.

These immigrants thus face a heart-breaking dilemma:  proceed with getting their legal status but separate from their families for up to 10 years—or remain in the US with their families but remain vulnerable to the forced separation of detention and deportation.

What Family Unity Waivers do

The Family Unity Waiver rule helps many of these immigrants stay together with their families as they pursue legal status.  Under this rule, they are able to apply for hardship waivers before they leave the US.  USCIS can then grant them “provisional waivers” from the reentry bars.  These immigrants still need to go abroad to process their applications for residency.  Still, if their provisional waivers are approved, they will have the assurance that when they leave the US they can return without triggering the bar.

What changed from the 2013 rule

Expand who qualifies: The previous rule only covered immediate relatives (parents, spouses, and minor children) of US citizens.  The new rule covers anyone who qualifies for an immigrant visa, including other immigrants who qualify based on family sponsorship (adult sons and daughters and siblings of US citizens, spouses and unmarried sons and daughters of permanent residents), immigrants who qualify under employment-based categories, and immigrants selected in the diversity (“visa lottery”) program.

Expand whose hardship will be considered:  The previous rule counted hardship only to the immigrants US citizen parent or spouse.  The new rule also counts hardship to a spouse or parent who is a permanent resident.  Hardship to children or other relatives still does not count.

Cover immigrants with previous removal orders or who reentered illegally after being deported:  The previous rule did not allow anyone with a prior removal order or who reentered after a previous deportation to apply.  The new rule allows immigrants with previous removal orders to apply if they have been granted a waiver from that order.  The new rule also allows immigrants who reentered after a previous deportation to apply if Homeland Security has not reinstated the previous removal order.

Allow immigrants who might be subject to other bars to get approved:  The new rule removes a provision that allowed USCIS to deny a provisional waiver if it had “reason to believe” that the applicant could be subject to another bar that could block her visa application and return to the US.  However, the consulate could still impose any other such bar if the applicant proceeds to her visa appointment.  Applicants should therefore still carefully review their cases with an immigration lawyer or BIA accredited representative to see if they might trigger any other bars.

Remove time limits:  The previous rule limited barred previous applications if the US consulate had acted to schedule an appointment for the applicant prior to January 3, 2013.  The new rule removed this restriction.

What the rule still does NOT do

Eliminate the need to travel outside the US:  If, however, the immigrant travels to a consulate to process her visa, she will have the assurance that she will not be barred from returning.

Eliminate the need to show hardship:  Immigrants will still need to show that their US citizen spouse or parent would suffer “extreme hardship” if they were barred from the US for up to 10 years.  USCIS is reviewing a guidance that should clarify the meaning of “extreme hardship” and is expected to issue this guidance in fall 2016.

Also, anyone who needs waivers for other bars from reentering the US would still need to apply for those waivers separately and in most cases after leaving the US.  These bars include those involving criminal activity and document fraud.

How to apply

To apply for a waiver, the immigrant must file an I-601A form.  This form and all other immigration forms can be downloaded at the USCIS website, www.uscis.gov.  The fee is $585.

Where to get help

Families who want more information or need referrals for legal or other help can call ICIRR’s Family Support Hotline, 1-855-HELP-MY-FAMILY (1-855-435-7693).

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