I-601A PROVISIONAL WAIVER FOR UNLAWFUL PRESENCE
In January 2013, the Secretary of Homeland Security announced that a new rule change to reduce the time family members have to spend abroad when applying for a Green Card.
"The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this rule achieves. The change will have a significant impact on American families by greatly reducing the time family members are separated from those they rely upon."
Often foreign born individuals, who have an approved family-based immigrant petition, are living in the United States. Such individuals may have entered the United States without a visa and been living in the United States for years without status. Generally to obtain their permanent resident card (green card), such individuals are expected to return to their home country to process through the United States consulate. The problem is that once they leave the United States, they become subject to a three-year or ten-year bar to re-entry under section 212(a)(9)(B) of the Immigration and Nationality Act. This is a penalty imposed by law for having been “unlawfully present” in the United States.
To overcome this bar and be issued an immigrant visa, the foreign born individual must have an I-601 waiver approved by USCIS. To obtain approval of the traditional I-601 waiver, the foreign born individual must prove that not allowing his or her admission to the United States will cause extreme hardship to a qualifying relative. The qualifying relative for an I-601 can be a spouse or parent with United States citizenship or permanent resident status.
Historically these waviers could not be submitted until after the first consular interview; ie after the green card applicant left the United States. The foreign born beneficiary of the approved family petition would then have to remain in his or her home country, separated from family members in the US, until a decision was made on the I-601 waiver application. This could result in a family being separated for an indeterminate time, which sometimes exceeded twelve months.
Under the new rule, consular processing in the country of origin is still required, but for immediate relatives of United States citizens, a waiver can now be filed and approved before leaving the United States. (In November 2014, President Obama indicated this in country process would also be made available to close relatives of permanent residents.) This allows the green card applicant to wait for approval of the waiver while remaining in the United States with his or her family, thus decreasing the time that the family will be separated. Those who do not qualify for the new provisional waiver will continue to file Form I-601 under the old process. Those who qualify under the new rule will file Form I-601A and obtain a decision on the waiver before leaving the US for the consular interview.
The new process using Form I-601A is only available to
- Immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives).**
- Whose only grounds of inadmissibility is unlawful presence
The new provisional unlawful presence waiver process does not change the immigrant visa process. Even if your provisional unlawful presence waiver is approved, you are still required to depart the United States for your immigrant visa interview with a U.S. consulate abroad. It also does not change the hardship to the qualifying relative that must be proven for approval of the waiver.
If you have questions about your eligibility for the I-601A provisional waiver, about the standard I-601 waiver or proving hardship, you may contact our immigration law firm at 303-442-8554 or 303-557-0725 to schedule a consulation with one of our immigration lawyers at our Boulder or Lakewood/Denver office.