Persons who unlawfully enter the U.S. without inspection or parole (entry without a visa issued at a consular post abroad or inspection at an authorized port of entry) are considered to be “inadmissible” under the Immigration and Nationality Act (INA). To be admissible, the law requires a lawful entry into the U.S. after inspection and authorization by an immigration officer. Individuals who are inadmissible are ineligible to receive visas and be admitted to the U.S. Entry without inspection or “EWI” is only one of several grounds that may render an individual inadmissible to the U.S. (other grounds include health, criminal convictions, participation in terrorist activities, etc.). Furthermore, under the INA, an individual who is unlawfully present in the U.S. for more than 180 days but for less than a year and who leaves the U.S. after such time, is ineligible to receive a visa to the U.S. for a period of 3 years. An individual who is unlawfully present for longer than one year and leaves the U.S. after such unlawful stay, is ineligible to receive a visa to the U.S. for a period of 10 years. These are what are known as the 3 & 10 year bars and can only be amended by an act of Congress. They are triggered upon leaving the U.S. Under the INA, a waiver for the bar is available only to individuals who can demonstrate “extreme hardship” to a U.S. citizen or lawful permanent resident spouse or parent by reason of their ineligibility to remain in the U.S.
Some individuals, even if unlawfully present in the U.S., are eligible to adjust their status—e.g., through marriage to a U.S. citizen—to that of a lawful permanent resident. To qualify for adjustment of status, individuals must satisfy certain requirements including being “admissible” to the U.S. As explained above, individuals in EWI status are not admissible, even if they are the beneficiaries of a family petition (by spouse or parent). Thus, the law requires them to leave the U.S. and present themselves to a consular post abroad where their eligibility to receive a visa will be assessed, including a determination of whether that individual is admissible. However, because individuals in EWI status are subject to the 3 & 10 year bars once they depart the U.S., even if they leave to lawfully re-enter, they must obtain a waiver to overcome a bar, receive a visa, and adjust their status to permanent resident. Under current law, this waiver can only be obtained at a consular post abroad and may take up to a year for a decision to be made.
The new Family Unity Waiver process proposed rule allows applicants for these waivers to remain in the U.S. while their application is adjudicated. Currently, beneficiaries of a family petition are not able to apply for the waiver until they have appeared for an interview at a consular post abroad and their application has been denied because of unlawful presence in the U.S. Applicants must await the decision on their waiver application abroad. The new Family Unity Waiver rule would change this process by allowing individuals to apply and receive a decision on a waiver request before leaving the U.S. for their visa interview at the consular post abroad, potentially shortening the time families are separated. However, the proposed Family Unity Waiver rule does not change the level of scrutiny (“standard of review’) under which applications would be examined. Applicants must still show that their departure will cause “extreme hardship” to a U.S. citizen or permanent resident spouse or parent. The “extreme hardship” standard in itself is a high bar.