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USCIS Seeks to Unify Families Facing Separation through Revised Waiver Process

Posted on by Ruby Powers in Consular Processing, I-601 Waivers, Immigration Law, Immigration Trends, Legislative Reform Leave a comment

From Immigration Impact

Today, the administration took another important step toward fixing one of the most notorious problems with our broken immigration system—the 3 and 10 year bars. The U.S. Citizenship and Immigration Services (USCIS) announced today that it was filing a notice of intent to change a rule which would streamline the application process for many relatives of U.S. citizens currently eligible for permanent resident status, thereby minimizing the amount of time that applicants would have to be away from their families before being admitted into the United States.

Under current rules, thousands of people who qualify for legal status must leave the U.S. to obtain their permanent resident status, but as soon as they leave, they are immediately barred from re-entering the U.S. for 3 or 10 years because of their unlawful presence in the United States. Many are eligible for a family unity waiver (which waives the bar to admission if extreme hardship to a spouse or parent can be established), but the way the law is currently implemented, the waiver can only be applied for from overseas That process can often take many months or even years, deterring otherwise eligible applicants from applying for legal status who instead remain unauthorized in the U.S. rather than risk separation from their families. (For more information on 3 and 10 year bar, see this fact sheet by the Immigration Policy Center.)

Under the proposed “in-country processing” rule change, spouses and children of U.S. citizens who apply for residence, but need a family unity waiver to re-enter the United States, will be allowed to apply for the waiver without leaving the U.S. The new rule seeks to help only spouses and children of U.S. citizens, not spouses and children of legal permanent residents, and does not alter or revise the eligibility standards for green cards or waivers. The proposed new rule would only affect persons whose sole need for a waiver is based on having lived in the U.S. without authorization (persons seeking a waiver on other humanitarian grounds must still leave the U.S.)

This “in-country processing” proposal means that USCIS could grant a provisional waiver here in the U.S, and many applicants would not face the same waiting period outside the country.  It is important to note that applicants would still be required to depart from the U.S. before receiving final approval and legal status.  But eligible immigrants will be encouraged to go through the process rather than remain unlawfully in the U.S.

Although the actual rule change will not go into effect for several months—a “notice of intent” to change the rules governing the adjudication of waivers for the 3 and 10 year bars was published in today’s Federal Register and will be followed by a call for comments and a comment period—the revision will make a huge difference in the lives of many U.S. families.

Applicants currently face long separations from their U.S. citizen family members as well as dangerous situations while they wait.  Many waivers are processed in Ciudad Juarez, Mexico, a city wracked with violence over the last several years.  This small step of allowing these family members to apply for and receive waivers inside the U.S. may save them from long, potentially dangerous separations from their families.

Some may argue that this rule change is an example of the president overstepping boundaries and bypassing Congress to reform the immigration system. These claims are wrong. While Congress writes the laws—including the 3 and 10 year bars—the executive branch decides how to execute the laws through rules and regulations which align with their priorities and current agency resources.  The waivers are currently processed overseas because of an administrative rule, and the current administration has every right to change that rule, just as all administrations before them.

The Obama administration is proposing a rule change that will partially ameliorate one of the most contradictory rules of immigration law, thereby encouraging legal immigration and helping to keep U.S. families together.


DHS Announces Planned Changes to I-601 waiver for Unlawful Presence Waivers

Posted on by Ruby Powers in Consular Processing, I-601 Waivers, Immigration Law, Immigration Trends, Legislative Reform Leave a comment

The January 6, 2012, DHS Announcement about
Planned Changes to Processing for Unlawful Presence Waivers
Frequently Asked Questions
What was announced on January 6?

On January 6 DHS announced, in a notice to be
published in the Federal Register on January 9 that it will be issuing new regulations for
how unlawful presence waivers will be processed for certain immediate relatives who are
filing immigrant visa applications abroad. Specifically, the new procedure will allow
these individuals to file for a provisional unlawful presence waiver and await
adjudication while in the U.S. If approved, they will still have to depart the U.S. to
undergo visa processing and an interview at a U.S. consulate abroad. To receive a
provisional waiver, they will still need to show that a lengthy bar from the U.S. would
cause their U.S. citizen spouse or parent “extreme hardship.”
What is the current process and why is the change necessary?


Currently, many relatives of U.S. citizens and lawful permanent residents face
unnecessary and dangerous bureaucratic hurdles when they apply for lawful permanent
residence (“green card”). In order to be granted permanent residence, these applicants
are required to travel to a U.S. consulate in their home country to be interviewed and wait
for the visa to be processed. But departure from the U.S. triggers a 3- or 10-year bar to
re-entry for many applicants—specifically those who have been unlawfully present in the
U.S. for more than 180 days.
Individuals subject to this re-entry bar may apply for a waiver (using DHS Form I-601;
see 8 U.S.C. 1182(a)(9)(B)(v)) so that they do not have to face years of separation from
their family. To qualify, they must demonstrate that their U.S citizen or permanent
resident spouse or parent would experience “extreme hardship” if the waiver is not
granted. But under the current process, the individual can only apply for the waiver in
the home country, after having had an initial interview at the consulate. The decision on
the waiver, which is made by USCIS even though the family member is abroad, often
takes weeks, months or even years to be completed. Meanwhile, families are separated,
and the spouses and children of U.S. citizens and lawful permanent residents are forced to
endure potentially dangerous situations in the home country until the waiver is granted
and they can return to the U.S. as lawful permanent residents.
Immigration law provides that U.S. citizens and lawful permanent residents can apply for
“green cards” for their foreign-born spouses and children. But the lengthy delays and
risks in the current waiver procedure discourage many family members from completing
the process of legal immigration. Family members have been assaulted or killed while
waiting for waivers to be reviewed.
What will the new process be?


The new procedure will allow certain immediate relatives—spouses, children and parents
of adult of U.S. citizens—to apply for waivers of the unlawful presence bars while
remaining in the U.S. If the individual is found eligible, USCIS will grant a provisional
waiver. He or she will still have to depart the U.S. and visit a U.S. consulate abroad to
apply for an immigrant visa. During the immigrant visa interview, the consular officer
will make the finding of inadmissibility based on unlawful presence and apply the
provisional waiver. If other grounds of inadmissibility are found, the individual would
need to submit another waiver application, if eligible, while abroad. In many cases, the
provisional waiver will reduce the wait period abroad and the separation from the
applicant’s family by several months or years.
Individuals will still need to meet the extreme hardship standard established in existing
law to obtain a waiver. The January 6 notice states that USCIS does not intend to modify
the standard.
Who will be able to use the new process?
As announced in the January 6 notice, the new regulation will change the application
process only for immediate relatives whose U.S. citizen spouse or parent would suffer
extreme hardship if the bar is not waived.
Who is left out of the new process?
According to the January 6 notice, the new process will not apply to family members of
lawful permanent resident petitioners. It will also not include immediate relatives if their
qualifying relative for the hardship waiver is not a U.S. citizen spouse or parent. These
individuals will still need to apply under the existing procedure (departing the country
first and applying for the waiver while abroad). There is no valid reason not to apply the
same procedure to these individuals whose spouses and children face the same
bureaucratic delays, obstacles and dangers when required to wait abroad for their waiver
adjudications.
The new procedure will apply only to individuals who are subject to the 3- and 10-year
bars for unlawful presence. Individuals who are subject to other grounds of
inadmissibility are not affected under the new process and will still have to depart the
U.S. before applying for any waiver.
When will the new regulations and process be implemented?


The new provisional waiver procedure has not yet taken effect. The notice issued on
January 6 announces the government’s intent to issue a proposed regulation at a future
date. Next, DHS will issue a Notice of Proposed Rulemaking (NPRM) that will include a
proposed regulation governing the waiver process and will invite public comment. The
notice states that the new waiver process will not be implemented until a final rule is
issued and the change becomes effective.
What should current and prospective waiver applicants do at this time?
The January 6 announcement has not changed anything in the current waiver procedure.
The notice discourages the filing of applications for provisional waivers and states that
such requests will be rejected. The new procedure will not take effect until a final
regulation is issued.
Once the new procedure takes effect, individuals with pending applications for unlawful
presence waivers will not qualify under the new procedure.
What is the cost for applying for a waiver under the new procedure?


The January 6 announcement does not mention a change in the application fee for filing a
waiver application (Form I-601). The current fee is $585.
How will the new procedure improve government efficiency?

Under the current
procedure, waiver applications are filed by individuals who have departed the U.S. and
are applying at U.S. consulates abroad. However, those waiver applications are not
adjudicated by the U.S. consulate. Instead, they are forwarded to USCIS. Wait times for
processing waivers can be months or years. Processing these applications in the U.S. will
save government resources at the consulates and reduce the costs of shifting cases back
and forth between government agencies.


Recently Introduced Legislation – Prepared by AILA

Posted on by Ruby Powers in Immigration Law, Legislative Reform Leave a comment

 

Introduced Legislation
 

August 1

H.R. 2730- Strengthening the Child Welfare Response to Human Trafficking Act of 2011
(Bass D-CA)
Better enables State child welfare agencies to prevent human trafficking of children and serve the needs of children who are victims of human trafficking

H.R. 2763
(McDermott D-WA; Ros-Lehtinen R-FL)
Extends by two years the special rule relating to eligibility for benefits under the supplemental security income program for certain aliens and victims of trafficking. Amends section 402(a)(2)(M) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.

H.R. 2771
(Rivera R-FL)
Amends Public Law 89-732 to increase to 5 years the period during which a Cuban national must be physically present in the United States in order to qualify for adjustment of status to that of a permanent resident

August 2

S. 1506
(Rubio R-FL)
Prevents the Secretary of the Treasury from expanding United States bank reporting requirements with respect to interest on deposits paid to nonresident aliens.

August 5

H.R. 2805 – Doctors for Underserved Areas in America Act
Lofgren D-CA)
Amends Section 220 of the Immigration and Nationality Technical Corrections Act of 1994 to make the section permanent.


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