Less Uncertainty with I-601 Unlawful Presence Waiver Petitions

Immediate Relatives of US Citizens can now have their I-601 Unlawful Presence Waiver requests determined without leaving the United States. In the past, clients who entered the country unlawfully and subsequently married a United States Citizen were told they had to attend their Green Card interviews at the American Consulate in their native country as opposed to having them adjudicated here at a local USCIS field office.

Upon their arrival to the U.S. Consulate of their home country, they were told that they would not qualify for the Green Card unless they could provide sufficient legal grounds for a waiver (or pardon) for previously remaining in the United States unlawfully. This is often a scary proposition for aliens in this situation because if their waiver request is denied, the practical result is that they would be effectively deported from the United States for ten years. Now, according to the new Notice of Intent published by the Department of Homeland Security, these Immigrant Waivers can be heard within the United States.

Under section 212(a)(9)(B)(v) of the Act, an immigrant waiver may be granted if a “qualifying relative” would suffer extreme hardship should their relative not be allowed to immigrate and remain in the United States. For purposes of this provisional waiver, DHS intends to limit who may participate in the program to immigrants with immediate relatives who can demonstrate extreme hardship. Immediate relatives include a citizen spouse or parent or a lawful permanent resident spouse or parent.

This Notice will largely affect the numerous individuals who entered the United States unlawfully, remained here and married a US Citizen. The waiver regulations, however, will remain unchanged in the sense that there still must be a hardship showing. USCIS does not intend to modify the standard for assessing eligibility for these waivers, including whether the denial of the waiver would result in extreme hardship to a U.S. citizen spouse or parent (“qualifying relative”).

Even if they obtain a provisional waiver, the recipient would still be required to obtain a visa through consular processing in their native country. The purpose of the new process is to reduce the time that U.S. families remain separated while their relative proceeds through the immigrant visa process.

In the past, individuals would be often subjected to unusually long waiting periods before their waiver requests were heard, (sometimes up to 18 months), all the while waiting outside of the United States, separated from their families.

This is a welcome change for many of our clients at MJ Law. We are currently waiting for the official filing procedures to be published. If you or a loved one believes they may be eligible to file a waiver request, please feel free to contact our offices. https://www.mj-law.com


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