USCIS Proposes New Rule for Family-Based Visa Petitions

On January 9, 2012, US Citizenship and Immigration Services (USCIS) published a proposed rule for comment that would allow certain persons with approved family-based immigrant visa petitions to seek waivers in the United States for time they have spent in unlawful status, rather than having to apply for waivers overseas.   This modest, procedural change will shorten the time that qualifying family members of US citizens must spend abroad (apart from their US families) and will lead more immigrants to avail themselves of the family-based visa process.

The first step in the family-based immigration process is for a US citizen or lawful permanent resident to petition for a visa for a close family member.  However, after a family-based visa petition is approved, many beneficiaries face multi-year backlogs, based on numerical caps by nationality and by visa preference category.  During this time, many opt to live unlawfully in the United States with their sponsoring family members.  However, once a visa becomes available, most family members must leave the country to secure it.  Such departures can trigger three-year and 10-year bars to admissibility (i.e., readmission) based on having lived without status in the United States.  Although waivers may be requested, most applicants must submit waiver applications from outside the United States, and meet a strict “extreme hardship” standard.  The uncertainty of the outcome of a waiver application and the often significant time that even persons whose waivers are ultimately approved must spend abroad dissuades many families from initiating this process at all and dissuades others from traveling abroad to secure their visas.

This problem is detailed in a report by the Migration Policy Institute, which was co-authored by CMS’s Executive Director Donald Kerwin, titled “Executive Action on Immigration: Six Ways to Make the System Work Better.”  The USCIS’s proposed rule sets forth a more limited fix than the report recommended.  The USCIS would allow immediate relatives of US citizens to request provisional waivers prior to departing the United States.  The MPI report recommends that pre-adjudication of waivers be available in all family-based visa cases.