USCIS Final Rule on family unity waivers is modest improvement over prior version

To put a light spin on an important topic, the Final Rule from USCIS on the I-601A family unity waiver roughly says, “We hear what you’re saying, and the answer is no.” [If you don’t get the reference, see this skit.]

According to USCIS, the regulatory agency received some 4,000 comments on its proposed rule between April and June 2012. (Our advocacy efforts alone yielded nearly 200 of these comments. You can see our explanation of what the new I-601A process means here.) In their publication in the Federal Register (preliminary version here) USCIS shows that they carefully considered the input of these thousands of commenters and ultimately decided to reject most of their suggestions.

We don’t mean to suggest that these decisions were not without merit, but the result is a disappointment for immigration advocates and undocumented immigrants and their families. Mostly unchanged from the Proposed Rule last year, these are the requirements to qualify for I-601A, Application for Provisional Unlawful Presence Waiver:

> Applicant must have an approved I-130 (or I-360) petition filed by his/her U.S. citizen spouse (or parent, if the beneficiary is unmarried and under age 21). DHS declined to expand the I-601A process to include preference immigrants (visa categories F-1, F-2A, F-2B, F-3, or F-4).

> The immigrant visa case must have advanced to the National Visa Center stage, and the Department of State filing fees must be paid, but the Department of State may not have initiated scheduling of a consular interview.

> Applicant must not be in removal proceedings unless proceedings have been terminated, dismissed, administratively closed and not re-calendared, or the NTA has been cancelled.

In order to obtain approval of an I-601A, the correct fees must be paid and the applicant must show extreme hardship to the qualifying relative(s) in order to obtain approval of the discretionary waiver. USCIS has clarified that there will be no fee waiver for the I-601A. Other technical considerations also apply but they affect only a small number of individuals in specific circumstances.

The major disappointments here are that the process will not be available to preference-system immigrants and that individuals who already had their immigrant visa appointments scheduled (that is to say, who already had things in process when this proposal was announced) will be barred from this beneficial process.

The good news is at least trifold:

(1) this process will take effect March 3, 2013 and stands to help thousands of families resolve immigration issues without unpredictable family separation;
(2) USCIS has changed its rule and will permit individuals to file multiple I-601A applications even if prior applications are denied; and
(3) USCIS has shown openness to expanding the process to family preference immigrants “after assessing the effectiveness of the provisional unlawful presence waiver process and its operational impact…”

This is all directly from USCIS, but the Final Rule will not be published until tomorrow. We will keep you posted as new clarifications emerge.

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3 Comments

Filed under Advocacy, Family-Based Immigration, Undocumented Immigrants

3 responses to “USCIS Final Rule on family unity waivers is modest improvement over prior version

  1. Pingback: I-601 Family Unity Waivers: A Work In Progress? « Batara on Immigration: Personal, Passionate, and Provocative Insights and Tidbits

  2. Sara Sichtermann

    How someone can prove extreme hardship if this person is married to a Usa citizen but has no children within the marriage?.
    Thanks in advance for your answer.

    • Hello Sara,

      Every case is different, so the best answer I can give you is to contact an AILA attorney or a BIA-accredited immigration program in your area. You can find BIA programs at http://cliniclegal.org/about-us/affiliate-directory

      Generally speaking, the separation of a husband and wife can still be a compelling example of hardship even where there are not children. Spouses have joint finances that may be affected if an income-earning spouse has to leave the country or if the couple has to support two separate households. Sometimes spouses provide direct medical care to their partners or have medical benefits that the other would not otherwise be able to access. Spouses often have strong emotional bonds that would be traumatic to break due to a ten-year separation.

      There are many factors for consideration in an extreme hardship case. The best advice you can get will come from an honest attorney who has a strong knowledge of immigration law or from a BIA-accredited program specifically oriented toward serving individuals with immigration matters.

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