Despite the excitement over the government’s announcement to finally issue its new rules for I-601 family unity waivers, caution is warranted.


As a green card attorney, I believe immigrant families should continue to operate from a protective posture.

Several immigrant families will benefit from the changes.

Yet, there are other unaddressed aspects of the I-601 waivers which applicants still need to surmount.

These issues were sidestepped in the government’s announcement.

DHS Announces New I-601 Waiver Procedures

In the Department of Homeland Security press release announcing the new regulations, Janet Napolitano noted, “This final rule facilitates the legal immigration process and reduces the amount of time that U.S. citizens are separated from their immediate relatives who are in the process of obtaining an immigrant visa.”

Added USCIS Director Mayorkas, “The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this rule achieves.”

Even politically knowledgeable groups like the AFL-CIO parroted the administration’s narrow view, telling their members, “Immigrant families with a spouse, child, or parent who is a U.S. citizen will no longer be torn from each other when a family member who is an aspiring citizen begins the process of obtaining lawful permanent status in the United States under a new federal rule.”

However, the reality is that the law is not being changed. Only a few procedures. Extreme hardship still remains the standard for immigrants to earn a I-601 family unity waiver. Approval depends on the discretion of the agency officer reviewing the application.

Overview Of Provisional Family Unity Waivers

Other organizations, like The Immigration Assistance Program of Catholic Charities of Northern Nevada, offered clearer assessments, stating the the new rule on family unity waivers is only a modest improvement over the previous version.

In fact, to help their following understand the I-601 waiver application details, Catholic Charities directed them to a video produced last year, while the final details of the new regulations were still being outlined.

Lingering I-601 Family Unity Waiver Problems

In short, the new I-601 changes did not go far enough. In my view, the three major shortcomings are:

  • Extreme Hardship Standards – Because hardship is determined on a discretionary basis, the standards often vary from office to office. Outlining an assessment guide would greatly help not only immigrant applicants, but also immigration agents.
  • Eligible Family Members – Many immigrants are not able to utilize the new rules because they are not the spouse, child (under 21 and unmarried), or parent of a U.S. citizen. Several other immigrants who are eligible to seek benefits under family members are not eligible to seek I-601 waivers under the new process. These include brothers, sisters, and children (over 21 or married) of U.S. citizens. In addition, all beneficiaries of family-based petitions filed by lawful permanent residents do not qualify.
  • Unlawful Presence Policies – Under the new rules, though immigrants successfully demonstrate extreme hardship to family members, they must still return to their home country for green card interviews. By using a policy known as parole, this process could be amended to allow I-601 waiver grantees to seek permanent residence at local immigration offices.

Of course, this is not the end of the story. Immigration reform is expected to be addressed by Congress in the coming year.

And these issues, in one form or another, are likely to become part of the national immigration reform discussion and debate.

Carlos Batara on G+