family-relation-immigration

I-601a Provisional Unlawful Presence Waiver of Inadmissibility Expansion 

On July 22, 2015, the Department of Homeland Security sought to expand the eligibility for people who may qualify for a provisional I-601a “Stateside” waiver. Prior to this change which is set to go into effect on August 29,2016, the provisional waivers were only available to applicants who were immediate relatives to United States Citizens who could prove that their U.S. Citizen Spouse or Parent would suffer extreme hardship because of their ineligibility to immigrate to the United States. With this new expansion, the filings shall no longer be limited to immediate relatives of US Citizens. Any individual with an Immigrant Visa available may seek an I-601A Waiver based on the hardship to his or her United States Citizen or Lawful Permanent Resident spouse or parent. The result is a new expansion of “qualifying relatives” for whom one can claim an extreme hardship. Spouses or parents of United States Citizens as well as Legal Permanent Residents will now qualify as qualifying relatives.

This blog will explain the new expansion of the I-601a waivers.

Expanding Qualifying Relatives

According to the USCIS, a qualifying relative is a US Citizen Spouse or Parent. This new expansion will now allow the spouses or parents of Legal Permanent Residents to apply for an I-601a waiver.

Expansion of Applicants

The filing of the stateside unlawful presence waiver is currently limited to immediate relatives of U.S. citizens who can show extreme hardship to a U.S. citizen spouse or U.S. citizen parent. This change will allow any foreign national who is seeking an immigrant visa abroad, and for whom a visa is available, to submit an application for a stateside waiver of unlawful presence before departure from the United States. This will include Parents of adult U.S. Citizens, Employment based Immigrant Visa petitions, and any other immigrant based petition where a Visa is available so long as they have a qualifying relative to claim the extreme hardship.

Department of State interviews scheduled prior to 01/03/2013

The USCIS will remove the Department of State Visa interview scheduling cut-off dates. If DOS scheduled an interview prior to 01/03’2013 and the case is reinstated, the immigrant visa petition will also be reinstated. If it is not reinstated, then they have to resubmit an I-130. If DOS scheduled them 4 an interview before 01/03/2013 and they didn’t show up but they kept the case alive, they can apply for a waiver. If and only if, the fees have been paid and the case is still alive.

Final Orders of Removal/Deportation

If the applicant has a final order of removal or deportation, they may file form I-212 prior to filing an I-601a waiver. However, they may only file the I-601a waiver if and only if the I-212 is conditionally approved.

Reason to Believe Standard

There have been cases where an applicant has been denied because the USCIS has a “reason to believe” that the applicant may be inadmissible due to other grounds of inadmissibility. With this new expansion, the USCIS is getting rid of this completely. This means that the USCIS cannot deny your case unless they have definitive evidence of your inadmissibility. (Does this make sense? )

Below are a few questions that some may have in mind in regards to the new expansion of the I-601a waiver

What is an I-601a waiver?

  • An I-601a waiver allows an individual who is an immediate relative of a US Citizen Spouse or Parent who would not otherwise qualify to adjust status in the United States because they entered illegally and are subject to the 3 or ten year bar to apply for a provisional unlawful presence waiver while they are still in the U.S. The Applicant must be in the U.S. at the time of the filing. Once the case is approved, the Applicant must attend an Immigrant Visa interview abroad.
  • In the past, individuals would be required to pursue the I-601 Waiver at a U.S. Consulate in their home country. President Obama changed this policy to allow for waivers to be heard decided in the United States prior to the individual’s trip abroad to receive his or her Immigrant Visa (Green Card).

What is an extreme hardship?

  • The USCIS has not exactly defined what constitutes as an “extreme” hardship. They have however stated that an extreme hardship is a hardship that is beyond what the qualifying relative would normally experience if the Applicant were ineligible to immigrate to the United States. This means that every case will be reviewed on a case by case basis. Here at MJ Law, we have processed hundreds of I-601A cases that have been approved.

Who is eligible for this new I-601a expansion?

  • This expansion will now allow SPOUSES and PARENTS of Legal Permanent Residents to apply for an I-601a waiver.

What are the 3 and 10 year bars?

  • The 3 year bar
    The 3 year bar applies to anyone that has entered the country illegally (without being inspected) or overstayed their visa by more than 180 days but less than one year, and who departs the U.S. voluntarily.
  • The 10 year bar
    The 10 year bar applies to anyone that has been in the country illegally for more than one year and who voluntarily leaves the United States. In such case, they will be subject to a bar of ten years before they are afforded the opportunity to return to the United States, (unless approved by Waiver).

What if my I-601a waiver is denied?

  • Unfortunately, if the waiver is denied, an appeal will not be considered. However, at MJ Law we have successfully re-submitted waiver applications and have been approved. Read our waiver denial blog for more information (link).

Will I still have to leave the country for an immigrant visa interview after my I-601a waiver is approved?

  • Yes, this new expansion still requires the Applicant to attend an immigrant visa interview abroad.

I already have an I-130 petition approved, can I still apply for an I-601a waiver?

  • Yes, the first step when trying to apply for an I-601a waiver is to first submit an I-130 application.

Will this new expansion waive other grounds of inadmissibility?

  • Unfortunately, no. This new expansion will only waive the applicant’s unlawful entry.

What if I am outside of the United States, can I still file form I-601a?

  • Unfortunately, one can only apply for the I-601a waiver inside the United States. If the Applicant is currently residing outside of the United States, he or she may file an I-601 waiver. The type of waiver will depend on the particular case as to whether or not the individual is eligible or not.

If you have more questions about this new I-601a expansion, you can call any of our attorneys in San Jose, San Francisco, or Pasadena at 408-293-2026 for more information.

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