Saturday, February 13, 2016
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MIRA advocates for the rights and opportunities of immigrants and refugees. In partnership with its members, MIRA advances this mission through policy analysis and advocacy, institutional organizing, training and leadership development, and strategic communications.

The Waiting Ends for the End of Waiting

waitingBy Sarang Sekhavat, MIRA Federal Policy Director:

After what seems like an eternity of waiting, the Department of Homeland Security (DHS) finally issued the final rule for provisional waivers of inadmissibility, what advocates are calling the “Family Unity Waiver”.  DHS initially announced back in January 2012 that it would make changes to the way that undocumented relatives of US Citizens could re-enter the United States after leaving the country to obtain an immigration visa abroad.  In April, DHS issued an interim rule and requested comments from the public.  On January 3, 2013, DHS released the final rule which incorporates some of the suggestions from public comments, but leaves many of our major concerns untouched.  The final rule will go into effect on March 4, 2013.

The Old Rule

The new rule is necessary because of the unfair way that the federal government processes I-601s, Applications for Waiver of Grounds of Inadmissibility.  According to the Immigration and Nationality Act (INA), certain undocumented relatives of US Citizens who benefit from a family-based petition had to leave the United States in order to obtain their immigration visa from a US consulate.  The problem is, once an undocumented individual leaves the country, they are subject to a 10-year bar to returning.  So essentially, the person is leaving the country to obtain documents required to be here legally, but once they leave, they are not legally allowed to return for 10 years.  The INA does allow an individual to file the I-601 to request permission to return to the United States prior to the 10 years, but current regulations say that the individual must file the I-601 outside the country.  That means that the beneficiary of the immigration visa must leave the country and be subject to the 10 year bar first, then file the application and hope they are allowed back into the country.

The New Rule

Under the new regulations, individuals who have an approved family-based petition still have to leave the country to obtain the visa.  However, under the new rule, immediate relatives of US Citizens can apply for a provisional waiver of inadmissibility (using the new Form I-601A) before leaving the United States to obtain their immigration visa.  The advantages of this new rule are very important for a number of families who fear being split apart.  For one thing, it provides certainty to the applicant and his or her family that they will not be split apart for ten years.  Previous to this rule, many people who would otherwise have been eligible for an immigrant visa would not apply for fear that they would not be able to overcome the ten-year bar.  This new rule allows an individual to know if he or she can return before voluntarily subjecting themselves to the bar.  A second advantage is in the speeding up the process – under the current rule, and individual might have to spend a year or more separated from his or her family while waiting for the government to approve the application for the waiver of inadmissibility.  With this new rule, the applicant will only have to be separated from his or her family for a matter of a few weeks while they go through the interview process to obtain the visa from the Department of State.

In order to be eligible for the provisional waiver, the applicant must meet a number of strict criteria:

  • · Be present in the United States at the time of filing;
  • · Would be inadmissible upon departure from the United States under INA § 212(a)(9)(B)(i);
  • · Is an “immediate relative” under INA §212(b)(2)(A)(i);
  • · Is the beneficiary of an approved immediate relative petition;
  • · Has a case pending with the Department of State based on the approved relative petition and has paid the immigrant processing fee;
  • · Will leave the United States in order to obtain the immigrant visa; and
  • · Can demonstrate extreme hardship to US Citizen spouse or parent under INA §212(a)(9)(B)(v).

In addition to these requirements, contained in the newly added 8 CFR §212.7(e), an individual cannot apply for a provisional waiver if:

  • · The applicant is subject to a ground of inadmissibility other than unlawful presence;
  • · The applicant is under the age of 17;
  • · The Department of State has already acted to schedule the applicant for an interview at a US consulate;
  • · The applicant is in removal proceedings (unless the proceedings have been administratively closed and not re-calendared); or
  • · The applicant is subject to a final order of removal.

While advocates around the country have been anxiously awaiting this final rule, we are disappointed that DHS did not address some of biggest concerns.  For one thing, advocates would have liked to see a much broader application of the new rule.  Limiting the rule to immediate relatives of US Citizens leaves thousands of families out in the cold.  This concern was raised both in public comments to DHS and in a stakeholder call with US Citizenship and Immigration Services (USCIS).  The good news is that USCIS is open to eventually expanding this new rule to the relatives of Lawful Permanent Residents.  The bad is that we have no idea if or when that would actually happen.  A second major concern of advocates is that the new rule only changes the when and where of filing an application without addressing the standard for qualifying for such a waiver.  Implementation of the new rule needs to include proper training and centralized processing of the “extreme hardship” requirement to ensure fair and consistent outcomes.

While advocates welcome the new rule and look forward to its implementation, this is really only a small step in a long journey towards making our nation’s immigration system fair and accountable.  Whether you’re talking about comprehensive immigration reform, ending Secure Communities, ending detention for civil violators, or a myriad of other issues facing our communities, there is still much work to be done.

For a succinct summary of t he change, watch this video from the American Immigration Lawyers' Association:">

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