\ afm \ Adjudicator's Field Manual - Redacted Public Version \ Chapter 24 Legalization. \ 24.4 Family Unity Program.
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Family Unity Program
On November 29, 1990, The Immigration Act of 1990 (IMMACT), Public Law 101-649, was enacted.
of IMMACT provides for relief from deportation, and the granting of employment authorization, to an eligible immigrant who is the spouse or unmarried child of a legalized alien holding temporary or permanent residence pursuant to sections 210 or 245A of the Immigration and Nationality Act, or permanent residence under
of the Immigration Reform and Control Act of 1986 (Cuban/Haitian Adjustment). This new program supersedes the administrative Family Fairness Program. The LIFE Act Family Unity program will be discussed in
of this field manual.
The purpose of the Family Unity Program is to provide a transition for certain family members of legalized aliens to family-sponsored second preference immigrant status. This is evident not only from section 301 of IMMACT, but also from its interrelationship with section 112 of IMMACT, which created up to an additional 55,000 visa numbers in fiscal years 1992, 1993, and 1994 for spouses and children of eligible legalized aliens under the family-sponsored second preference classification.
Where to File
An application for benefits under the Family Unity program must be filed at the Service Center having jurisdiction over the alien's place of residence, on Form I-817, Application for Family Unity Benefits. A separate application must be filed by each person claiming eligibility. Denial of an application may not be appealed. The applicant must submit another application to overcome the grounds of denial.
A separate Form
, Application for Employment Authorization, is
required. As part of the settlement of a Nationwide class action lawsuit,
Hernandez v. Reno
, C.A. No. 9:93 CV 63 (E.D. Tex., filed December 30, 1997), INS agreed to provide for a single application for Family Unity benefits and employment authorization.
Basic Requirements for Family Unity
[Chapter 24.4(d)(1) replaced 08-25-2009]
The following requirements apply to all petitions filed for Family Unity under IMMACT 90,
Public Law 101-649
The applicant must have been the spouse or unmarried child of a legalized alien on May 5, 1988, or December 1, 1988 in the case of a legalized alien under the Special Agricultural Worker (SAW) program. See
of the Act.
If on May 5, 1988, or where applicable, December 1, 1988, an applicant had the requisite relationship to the legalized alien, the applicant should not be found ineligible for Family Unity benefits based on the occurrence of any of the following:
the unmarried applicant subsequently marries; or
the relationship between the applicant and the qualifying legalized alien spouse, though in existence on the above specified date ends after that date, whether voluntarily or involuntarily; or
the qualifying legalized alien parent is now deceased; or
the qualifying legalized alien spouse is now deceased.
The applicant must meet all other eligibility requirements, see 8 CFR 236.12, and be otherwise eligible for the benefit.
(2) The applicant must have entered on or before May 5, 1988 (or December 1, 1988, where appropriate), and been residing in the United States since that date. If the applicant leaves the United States without advance parole after May 5, 1988 (or December 1, 1988, where appropriate) the I-817 must be denied; and
(3) The legalized alien must have filed for benefits on or before May 5, 1988 under
of the Act or on or before December 1, 1988 under
of the Act, or is a permanent resident under section 202 of the Immigration Reform and Control Act of 1986. (See also denied cases)
Legalization Application Pending as of May 5, 1988
An alien whose 245A legalization application was filed on or before May 5, 1988 but not approved until after that date will be treated as having been a legalized alien as of May 5, 1988 for purposes of the Family Unity program. An alien whose 210 SAW application was filed on or before December 1, 1988 but not approved until after that date will be treated as having been a legalized alien as of December 1, 1988 for purposes of the Family Unity program.
The following categories of aliens are ineligible for benefits under the Family Unity program:
(1) An alien who is deportable under any paragraph in
of the Act, except paragraphs (1)(A), (1)(B), (1)(C), and (3)(A);
an alien who is deportable under paragraph 237(a)(1)(A) is also ineligible for benefits under the Family Unity program if deportability is based upon a ground of inadmissibility described in
of the Act;
(2) An alien who has been convicted of a felony or three or more misdemeanors in the United States;
(4) An alien who has committed an act of juvenile delinquency which if committed by an adult would be a felony involving violence.
The regulations governing the family unity program are found at 8 CFR 236.10 through 8 CFR 236.18, Since these regulations are difficult to follow, the following is a list of those exclusion or deportation grounds which render an alien ineligible for Family Unity benefits.
Termination of conditional permanent residence
- Failure to register or falsification of documents
Other ineligible aliens include those convicted of a felony or three or more misdemeanors in the United States; aliens who have ordered, incited, assisted, or otherwise participated in the persecution of an individual because of the individual’s race, religion, nationality, membership in a particular social group, or political opinion; aliens who have been convicted by a final judgment of a particularly serious crime and is a danger go the community; aliens where there are serious reasons to believe a serio
us nonpolitical crime was committed outside of the United States; aliens who are a danger to the security of the United States; and aliens who have committed acts of juvenile delinquency which if committed by an adult would be a felony involving violence.
An alien whose application for benefits under the Family Unity program is granted will receive protection from removal for a 2-year period. He or she will be deemed to be in an authorized period of stay. Such authorized period of stay will be deemed to begin as of the date the Form I-817 was filed and continues without interruption until the Form I-817 is approved and through the period the alien retains Family Unity protection.
An alien granted benefits under the Family Unity program is authorized to be employed in the United States and should be provided an Employment Authorization Document valid for the same 2-year period as the protection from removal.
An alien granted Family Unity benefits who intends to travel outside the United States and then return must apply for advance authorization using Form I-131, Application for Travel Document. The authority to grant an application for advance authorization for alien granted family unity benefits rests solely with the
. (See also Chapter 54 of this field manual.)
If an application is denied, the case will be referred to the district director with jurisdiction over the alien's place of residence for consideration of whether to issue a Notice to Appear (NTA). The first case denied for an applicant will not be referred for an NTA until 90 days from the date of the denial, to allow the alien the opportunity to file a new I-817 application in order to attempt to overcome the basis of the denial.
Extension of Family Unity benefits
[Chapter 24.4(k) replaced 08-25-2009]
An application for an extension of Family Unity benefits must be filed by the alien on Form I-817. An extension may be granted if the alien's eligibility for benefits under the Family Unity program continues.
In addition, notwithstanding
8 CFR 236.15(e)
, if an applicant for extension of Family Unity benefits demonstrates that he or she no longer has a petitionable relationship with a legalized alien, his or her application may be approved even though the applicant is the not the beneficiary of an
However, applicants who still have a petitionable relationship with the legalized alien must still comply with the
8 CFR 236.15(e)