NEW YORK — The U.S. Department of Homeland Security published a final rule, effective March 4, 2013, permitting certain visa applicants to file for family unity waivers within the United States, reducing the amount of time families must spend apart.
DHS Secretary Janet Napolitano on January 2 announced the details in her agency’s website.
“This final rule facilitates the legal immigration process and reduces the amount of time that U.S. citizens are separated from their immediate relatives who are in the process of obtaining an immigrant visa,” said Secretary Napolitano.
According to the U.S. Citizenship and Immigration Services (USCIS), the final rule was reached after it considered all of the 4,000 comments it received in response to a proposed rule it issued in April 2012.
“The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this rule achieves,” USCIS Director Mayorkas said. “The change will have a significant impact on American families by greatly reducing the time family members are separated from those they rely upon.”
“We welcome the Obama administration’s recent decision to ease visa requirements for undocumented immigrants,” said National Federation of Filipino American Associations (NaFFAA) Chairman Eduardo Navarra in a statement.
“This commendable action would make it easier for them to apply for permanent residency without going through the harsh restrictions that separate them from their families. We are pleased with this rule change as it would benefit many in our community who are caught in visa backlogs, often experiencing the longest wait times of up to 22 years. Even if they are eligible for green cards, the bureaucratic barriers have caused unnecessary long-term separation from their U.S. citizen spouses and children.”
Under the new rule, certain eligible family members may apply for a provisional unlawful presence waiver (also called the family unity waiver) prior to leaving the United States for their visa interview in their home country. With an approved waiver in hand, these family members can then complete their travel and visa appointment in a short time and avoid spending additional time in their home countries separated from loved ones in the United States.
Navarra also noted that this is what NaFFAA has been advocating with its coalition partners in the Asian American community for years.
“It complements the White House decision announced last June to stop deporting young people who were brought to the country as children and have contributed productively as law abiding residents. These are meaningful steps forward,” said Navarra.
Previously, immediately relatives of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents must leave the U.S. and obtain an immigrant visa abroad.
Individuals who have accrued more than six months of unlawful presence while in the United States must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the United States after departing to obtain an immigrant visa.
Under the existing waiver process, which remains available to those who do not qualify for the new process, immediate relatives cannot file a waiver application until after they have appeared for an immigrant visa interview abroad and the Department of State has determined that they are inadmissible.
In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent.
According to the Asian American Justice Center, as of November 2012, there were nearly 4.3 million people in the family backlog and almost 1.9 million of them come from Asian countries. After Mexico, close family members from the Philippines, India, Vietnam and China experience the longest wait times.
USCIS will publish a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver, for individuals to use when applying for a provisional unlawful presence waiver under the new process.