Immigration News - Proposed Family Unity Waiver Changes

In the January 9, 2012 issue of the Federal Register, the Department of Homeland Security, through the U.S. Citizenship and Immigration Services (USCIS), published a notice of intent to change its current process for filing and adjudicating applications for certain waivers of inadmissibility filed in connection with an immediate relative immigrant visa application.  Currently, an alien must apply for a green card while outside of the United States.  However, the USCIS has proposed a provisional waiver which would allow the alien’s U.S. citizen relative to apply for the alien’s provisional waiver while the alien is in the United States.  This revised process will significantly reduce the amount of time that American families are separated from their immediate relatives.  The provisional waiver process will be limited to aliens who: (1) qualify for classification as immediate relatives of U.S. citizens; (2) have a U.S. citizen spouse or parent who would suffer an extreme hardship if the waiver were denied; and (3) the sole basis for the individual’s inadmissibility is unlawful presence in the United States of more than 180 days.  Generally speaking, an “immediate relative” is the spouse, parent or child (under 21 years old and unmarried) of a U.S. citizen, or, in the case of a parent, the U.S. citizen son or daughter must be at least 21 years old.  Only extreme hardship from the denial of a wavier to a qualifying U.S. citizen relative makes an alien eligible for the provisional waiver.  In other words, extreme hardship to the alien as a result of denial does not make the alien eligible.  The provisional waiver also requires that the only basis for the alien’s inadmissibility is his or her unlawful presence in the United States, meaning that aliens who require waivers due to any additional grounds of inadmissibility are excluded from obtaining a provisional waiver.  Finally, the burden is on the individual to establish that the provisional waiver is warranted as a matter of discretion.  We will be following this proposal through the regulatory process and will alert our clients to any pertinent changes made to the proposal.
This bulletin provides a general summary of recent legal developments. It is not intended to be and should not be relied upon as legal advice.