USCIS Seeks to Unify Families Facing Separation through Revised Waiver Process

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.

Photo by Kevin Luu.

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  • Don Aldridge

    Wonderful. Finally some human intelligence applied to immigration rules.

    • Elaine Sellent

      What is the Immigration Dept going to do for family members who have to wait years for visas just because they follow the correct procedures.

      My daughters paperwork took 5 years to be approved. Now we have to wait another 5 years for a visa. No not from India, China but the UK!

  • http://www.calegalsolutions.com Charles M

    It is about time the Government showed some heart in these kinds of cases. There are a lot of Filipinos in this situation. Unlike the Mexican residents of Juarez, the primary threat to Filipino relatives is usually poverty — and the burden of their U.S. resident or citizen family members of having to support them.

    • Cristal Guerra

      What do you mean unlike mexicans..???? Why do you have to talk crap without knowing ppls situation..??

  • jazzy

    it’s a good sign that in the coming few years , it would not be difficult to go to US. But what about those who would want to come there to work legally? are there laws that cover this problems? Laws that will help them find a job kn any field without so much problem in terms of processing of papers?

  • Jose Collado

    This rule is ridiculous and is just another slap in the many hard-working families that have come her and worked and been productive members of society. A more prudent and dignified approach would be to have ony 1 and 3 year bars. This would make more sense and would make an already broken immigration system more sensible, so this change of law is actually not helpful at all because people still are being asked to depart from the United States. In this sense, there is no family unification, and this is just another example of immigration polic gone wrong!

  • Gabi

    This is great news! This will help me because I am in the process of getting my papers, so knowing I will be able to stay in the united states until my waiver is approved. I have two daughters and my husband and my self are afraid to go to Mexico because of all the violence. It won’t be as bad if I go for a short period even though I would prefer not to go at all. I haves bachelor degree in biology and minor in chemistry, so I can’t wait to start my career in the science field!

  • http://calegalsolutions.com Romeo M.

    As long as people would not have to leave the country, which as the law requires them to depart from the U.S. before receiving final approval and legal status, this new waiver revised process could really be good news to those families being separated because of the three and ten year bars. Now, I wonder what the buzz over this new waiver when people would still have to leave. Once they get out of the U.S., there is no telling how soon they can be re-united with their families again.

    A seeming contradiction is very obvious in the statement: “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.”

    Still the same. Can somebody try to reconcile this?

  • Asma Yasmin

    My waiver case pending 4-5 years no decision so far been made. what to do next. regards.

  • Tearfully Happy Mother

    I as a mother have been praying for this day to come for years. Our baby and me as a citizen and my fiance as an immigrant- Us as parents- have been living in worry for years with the question ripping at us of when will our family be pulled apart. This “In Country Processing” Is great news and hopefully will bring great easy to others hearts as well. We have lived in Mexico before- It is horrible! There murders whole families- of mothers- and children daily. No wonder people do everything they have to to get out of that country and stay out. There would be no promise that we would make it back alive if we would have to go just to wait on a few pieces of paper- and what if we go and they do not let us back because of some change that occured? What life would our baby boy have? Or how long of a life I should say.. GOD BLESS WHOEVER IS TRYING TO APPROVE THIS AND KEEP FAMILIES UNITED IN THE WONDERFUL USA !!!

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  • Love2Watch

    Just wanting to thank the President for the new implementation not separating USC families. I am the only one missing for the 1st 2nd 3rd generation of my family for not having a lawful legal status in the US. The whole generation of my USC families will vote for Mr Obama for his courage to stand up to Congress telling them enough is enough. May God Bless you Mr. President Actually, my USC husband field an appeal at the AAO Office because my waiver was denied and I had been separated for 3 years since we filed the appeal and until now we have not heard anything yet. We’ve been married for 11 years after that 3 years of my relationship with my husband and daughter was taken away from us by the USCIS. This separation is emotionaly and financially draining. I wanna come home very badly, I miss my daughter and husband very very much. 3 Years has long gone and that is the sad part and it will never come back. We all hope for the best and all hangin in there.

    • http://immigrationimpact.com Raul Robledo

      Love2Watch may I ask why you were denied a waiver?

  • diana

    Would this in country processing benefit my husband if hhas a previous voluntary deportation and reentered illegally? There is no criminal record at all just (EWI)

  • Pingback: Significant Change in Procedural Process Helps Undocumented Family Members of U.S. Citizens « Watson Law Offices

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  • kathy gonzales

    Hope its more easy and help those family who are separated so long most especially couple,its really painful to be away from loved ones.

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