On October 1, 1991, additional immigrant visas will be made available and provisions for temporary "family unity" consideration (currently called "family fairness") will take effect under the Immigration Act of 1990, passed by the U.S. Congress last October. To help alleviate a reported 7- to 12-year backlog of applications to immigrate to the United States, the Act establishes 700,000 new immigrant visas to be issued annually in fiscal years 1992 to 1994. Of those, 55,000 are set aside for spouses and children of aliens granted legal resident status under the Immigration Reform and Control Act (IRCA) of 1986.
IRCA included no provisions for the families of legalizing aliens. As a result, until the Immigration and Naturalization Service (INS) Commissioner issued guidelines in February 1990 to standardize and clarify procedures, nonlegalized spouses and children who wanted permission to remain and work in the United States were subject to case-by-case decisions by individual INS District Directors applying their own standards of humanitarian consideration. Though helpful, even the 1990 policy left some uncertainties about procedures and safeguards for applicants. The new Act represents acceptance by Congress of the family fairness concept and offers some improvements over current guidelines, but questions still exist. Some of these may be answered when INS issues regulations for administering the law enacted last fall.
Consideration based on family fairness developed as a temporary measure allowing families to stay together, when one or more members have qualified for IRCA legalization and the others have not, and recognizing the long wait for regular immigrant status (using form I-130). Under both the current guidelines and the new law, permission for families of legal residents to stay and to work here is granted for a year at a time; spouses and children need to reapply annually.
Major differences between the new law and current INS policy are a later cutoff date for eligibility (residence required in the United States since May 5, 1988, instead of November 6, 1986) and the definition of "child" as under age 21 instead of 18. In the meantime, INS February 1990 family fairness guidelines for spouses and children of aliens legalized under IRCA still apply (described in "Family Fairness Guidelines Offer A Little More Certainty," Economics: Trends in Human Resource Management, No. 16, August 1990.)
The Immigration Act of 1990 specifies the qualifications for family unity, or "temporary stay of deportation and work authorization for certain eligible immigrants." Effective October 1, those eligible to apply will be spouses and unmarried children (under age 21) of people with temporary or permanent residence cards. The families must: (1) be generally eligible as immigrants, (2) have entered the United States before May 5, 1988, and (3) have resided here since then.
Employment authorization is to be granted as under the February 1990 guidelines. Besides revising the entry date and the definition of "child," the new law makes several other changes to the current rules. It omits the requirement that the family reside with the legalized alien. Having entered the United States on the basis of a misrepresentation will no longer be a ground for exclusion from family fairness benefits. A person still may be deported if excludable on certain criminal or political grounds, but the list is narrower than under previous policy. The new law declares ineligible an alien who has been convicted of a felony or three misdemeanors in the United States, or has participated in the persecution of others.
Under the new law, spouses and children who are granted temporary permission to remain will be subject to the same restrictions from "public welfare assistance" as the legalized alien to whom they are related. Current INS policy does not include such restrictions.
The present INS guidelines provide family fairness benefits for children born outside the United States after November 6, 1986, but who entered before February 2, 1990. The new law gives no protection to such children. Also uncertain is the status of children who turn 21 before October 1. Families who entered after May 5, 1988, will not qualify at all under the new law.
Until October 1, with the current INS policy still in effect, the only persons eligible for family fairness are spouses and unmarried children under age 18 who entered the United States before November 7, 1986 (or children born after November 6, 1986, who entered before February 2, 1990) and have resided with the legalized alien. Families who do not qualify under those terms but who will be eligible under the new law are being advised to get their papers ready and wait until October 1 to file. INS has indicated it will not apply the terms specified by the Immigration Act of 1990 until October 1.
Since the family fairness policy was issued early last year, INS had received 53,351 applications for family fairness in the Western Region by April 27, 1991; 35,442 have been adjudicated and 22,965 (65 percent) of those approved.
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