On April 2, 2012 on www.regulations.gov released the proposed Provisional I-601 Family Unity Hardship Waiver for public comments and feedback prior to finalizing the rule. This waiver was created for two main purposes:
1. To allow for spouses and children of U.S. Citizens to apply for their hardship waiver from within the United States allowing for a continuation of family unity during the processing period. (Previously applicants would have to return to their home country during processing which often can take well over a year)
2. To create efficiences in the US Government to include cost reduction.
The immigration courts are currently performing a court by court, case by case review of all open cases on their dockets and reviewing them for use of Prosecutorial Discretion by way of administrative closure. In short, this means that if a immigrant is determined to be worthy of prosecutorial discretion they may have their case administratively closed - thereby halting deportation proceedings. The assumption is that by doing so - the immigrant can follow the process to adjust their status - which will involve the use of the I-601 hardship waiver.
For those specified cases that could qualify for the use of the new provisional waiver this would be a huge adjustment to the process - but not the actual laws behind it. The new provisional waiver will simply allow for processing while in country to ensure that additional hardships are not placed on citizen families during this time period.
However, the new provisional I-601 waiver has a specified exclusion that could make several families exempt from use of this waiver:
On page 19903, of the Federal Register/Vol. 77, No. 63/Monday, April 2, 2012/Proposed Rules – Section B. Summary of the Major Provisions of the Regulatory Action in Question, 2. Ineligibility for the Provisional Unlawful Presence Waiver – reads as follows:
viii. They are in removal proceedings that have been administratively closed but not subsequently reopened for the issuance of a final voluntary departure order.
In short, if you were previously in deportation proceedings and found favor with the courts via the use of Prosecutorial Discretion (John Morton Memo, June 2012) and were granted an administrative closure – you are effectively blocked from this process. Rather, you would be required to file a standard I-601 which will require you to first return to your home country – and face a considerable separation from your family. Or, you can petition the courts to reopen your case (putting you back at risk) and request a voluntary departure (which may not be granted). If granted, the courts generally will give you no more than 4months to depart. You would then have to have this provisional waiver in and approved all within 4 months – very risky in any situation – surely under a brand new governmental process questionable at best that it could be completed so quickly. If it were not granted in that time frame – you would have to voluntarily depart and then lose all monies (fees for attorney to petition court to reopen your case, fee for I-601 Provisional Wavier – Attorney Fee to file waiver on your behalf, and more than likely non-reimbursable cost of a one way plane ticket to your home country). You would then need to restart the process and file the standard I-601 (including attorney costs) as you no longer qualify for the provisional waiver if out of country.
These costs seem quite out of line when considering that the purpose of this waiver, quoted from the actual proposal:
“the prolonged separation from immediate relatives can cause many U.S. citizens to experience extreme humanitarian and financial hardships”
USCIS is still taking comments and feedback on this item. The purpose of this petition is to request that they modify the new provisional waiver process to remove this exclusion - as it is effectively blocking those already deemed worthy of the courts and immigration systems favor by being administratively closed.
This waiver is designed with families in mind - we should not be excluding them and thereby placing their families at risk with either following their loved one to a potentially dangerous land, or by remaining behind and losing the support (financial, emotional, physical and otherwise) of the immigrant family member.