Obama Administration Rule Change Prioritizes Family Unity
WASHINGTON—Today 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.
“We applaud the Obama Administration for prioritizing family unity by easing burdensome bureaucratic hurdles,” said Erin E. Oshiro, senior staff attorney at the Asian American Justice Center, member of the Asian American Center for Advancing Justice.
Under current immigration law, U.S. citizens and legal permanent residents (LPRs) can apply for a green card for their spouse or child. However, many applicants and their families face long backlogs in obtaining a green card, forcing many families to live apart for years, sometimes even decades. 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.
Asian Americans are the most likely group to have family members caught in the visa backlogs. While Asian Americans are only six percent of the U.S. population, they sponsor more than one third of all family-based immigrants. 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.
Currently, applicants must file a visa petition, which must be approved. Upon approval, an interview is scheduled in their home country, requiring the spouse or child to travel, leaving the United States for an undetermined length of time. Departure, alone, can trigger a three or ten year bar to re-entry into the United States for family members who are undocumented and have been living in the United States for more than six months. Waivers are available for the re-entry bars but individuals can only apply for these waivers while waiting in their home country. Meanwhile, families are separated and spouses and children are forced to wait apart until a waiver decision is made and the visa process can be completed.
All applicants will still have to leave the United States for their home country visa interviews, and they must show that a three or ten year bar from the United States would cause their U.S. citizen spouse or parent “extreme hardship.” However, under this new process, applicants can apply for a provisional waiver before departing the United States.
AAJC appreciates the support of members of Congress, including the Congressional Hispanic Caucus and specifically Reps. Zoe Lofgren (D-Calif.), Jared Polis (D-Colo.), Michael Honda (D-Calif.), and Judy Chu (D-Calif.) and Sens. Robert Menendez (D-N.J.) and Michael Bennet (D-Colo.), who also urged the administration to make these changes in support of family unity. AAJC looks forward to working with the Obama administration to extend this new process to the spouses and children of green card holders.
“Allowing close family members to apply for waivers inside the United States will encourage eligible immigrants to come out from living in the shadows, apply for legal status, and preserve family unity, the cornerstone of our immigration system,” Oshiro added.
Further information on the process change can be found at U.S. Citizenship and Immigration Services’ website.