USCIS Announces Final Rule Supporting Family Unity

On January 2, 2013, Secretary of Homeland Security Janet Napolitano announced the final rule in the Federal Register that reduces the period of time that U.S. citizens are separated from family members who are in the process of gaining permanent legal status. The process will allow certain individuals to apply for a provisional unlawful presence waiver before departing the United States, and must notify the Department of State’s National Visa Center.

Current laws state that immediate relatives of U.S. citizens are not eligible to adjust their status to become permanent lawful citizens, and must first leave the country and obtain an immigrant visa abroad. If an individual has been in the U.S. for more than six months total, they must obtain a waiver to overcome the unlawful presence inadmissibility bar before being able to return to the United States after getting an immigration visa abroad.

This law will create a new Form I-601A, Application for Provisional Unlawful Presence Waiver, for green card applicants to avoid penalization for their unlawful presence. Under current laws, this form would be filed when the person is back in their home country after they have appeared for an immigrant visa interview, which prolongs their separation from family. The new rule states green card applicants can apply for the Form I-601A before leaving the United States.

“The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this rule achieves,” USCIS Director Alejandro Mayorkas said. “The change will have a significant impact on American families by greatly reducing the time family members are separated from those they rely upon.”

The new rule will not be effective until March 4, and the USCIS will not accept applications until that day.