On January 9, 2012, USCIS is publishing in the Federal Register a proposal to revise the process for deciding the family unity waivers for spouses and children of adult U.S. citizens.  This proposal to change the family waiver rules does not apply to spouses and children of U.S. lawful permanent residents though.  Under the current rules, those family members who qualify for legal status have to first leave the U.S. in order to secure legal permanent resident status.  However, once they leave, these family members are barred from re-entering the U.S. for either 3 or 10 years, if they have been unlawfully present in the U.S. for more than 180 days.  While many of these family members are eligible for family unity waiver (note: in order to qualify, they have to show that their U.S. citizen or permanent resident spouse or parent would experience ‘extreme hardship’ if the waiver is not granted), the current rules require that the waiver be applied only from abroad.  This waiver process can take months and often years because these waiver applications are actually forwarded by the U.S. consulate to the USCIS for formal adjudication.  Not only does this mean prolonged separation between the family members, it also means that the spouses and children of U.S. citizens and lawful permanent residents can potentially face dangerous situations in the home country until their waiver application is granted and they can then return to the U.S. legally as lawful permanent residents.

USCIS is proposing the rule change to allow the spouses and children of U.S. citizens who apply for legal permanent residency and who need a family unity waiver to re-enter the U.S., that the waiver can be applied first before the family member leaves the U.S.  There is no change in eligibility requirements for seeking a family unity waiver, and USCIS would simply grant a provisional waiver to the eligible departing family member.  The granting of the provisional waiver, while it is not the same as a final approval of the actual immigrant petition, will at least provide the applicant with some level of assurance that a final approval of his or her immigrant petition is possible, and it will also encourage applicants who might not have considered applying before to come into the light and seek legalization.

Under the proposed new rule, the family member will depart the U.S. and apply for an immigrant visa at his or her nearest U.S. embassy or U.S. consulate.  During the course of the visa interview, the consular officer will review the case and apply the provisional waiver to the immigrant visa application.  There is no other change in the current requirements for immigrant visa approval at the U.S. embassy or consulate.  However, by having a provisional waiver approval in place, it will cut down on the waiting period abroad for the immigrant visa application to be approved, and also shorten the separation of the applicant from his or her family in the U.S. by months or even years.

It should be emphasized once again that this USCIS announcement is only a notice of intent to issue a formal rule.  No formal regulations have been outlined yet, and the proposed regulations for the new waiver process still have to undergo public comment.  No implementation of the new waiver process will take place until there is a final rule with formal changes in place.  So for now, interested applicants are urged not to file any applications for provisional waivers, as those applications will be rejected by USCIS.  It will be interesting to see how and when the final regulations will be implemented by USCIS.

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