The United States Citizenship and Immigration Services recently published the unlawful presence waiver. The I-601A will allow immigrants to take steps to change their immigration status in the United States. The purpose of this waiver is not to change the requirements for an immigrant to be allowed into the United States; the purpose of filing the I-601A is to eliminate the risk of long-term separation between an alien and their spouse, child or parent. The new waiver will include a filing fee of $585. This new procedure will not take effect until March 4, 2013.
Under the previous waiver process, the applicants who are not eligible to adjust their status in the U.S to become lawful residents must leave the U.S and obtain a visa and an unlawful presence waiver abroad. Immediate relatives cannot file a waiver application until they have appeared for an immigrant visa interview abroad and the Department of State has determined that they are inadmissible. With this process, the applicant often experienced a long wait for the decision to be made whether they had been granted residency in the United States before they can return. This is due to the fact the applicant has to prove extreme hardship to a U.S citizen parent or spouse in order to win a waiver for unlawful presence to get back into the U.S.
The new waiver will allow the immediate relatives of U.S citizens to apply for a provisional unlawful presence waiver whilst still in the United States before they leave the country to attend the immigrant visa interview. By using the process of applying for a provisional waiver before departing for their immigrant visa interview abroad, the amount of time U.S. citizen are separated from their qualifying immediate relatives such as spouses or parents will be substantially lessened. However the applicant would still need to demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent. Extreme hardship to a U.S citizen spouse or parent is a discretionary determination based on a totality of circumstances. There is no appeal for denial of an I-601A waiver, however if an applicant's waiver is denied, the applicant may file a new waiver if circumstances have changed which could effect the decision of whether there is extreme hardship.
Under the I-601A, an applicant must meet all of these requirements to qualify for the waiver:
- Applicant must be present in the U.S. at the time they file for the waiver
- Applicant must prove hardship to U.S. citizen spouse or parent
- Applicant must be barred from readmission based only on unlawful presence in the U.S. and have no other grounds of inadmissibility
- Applicant must be a beneficiary of an approved immediate relative petition
- Applicant must have a case pending with the Department of State based on the approved immediate relative petition and paid the immigrant visa processing fee
- Applicant must depart from the United States to obtain the immediate relative immigrant visa
- Applicant must be able to prove extreme hardship to her or his U.S. citizen spouse or parent
The following non-citizens would be ineligible for the waiver:
- Applicants under the age of 17
- Applicants subject to other grounds of inadmissibility
- Applicants who have already scheduled an immigrant visa interview abroad before the publication of this rule
- Applicants who do not have an immigrant visa pending with the Department of State, based on the approved immediate relative petition and have not paid the immigrant visa processing fee
- Applicants in removal proceedings, unless the proceedings are administratively closed
- Applicants subject to final orders of removal
- Applicants with pending applications to USCIS for adjustment of status
If you would like more information on regarding a I-601A waiver then you should consult with an experienced immigration attorney from our firm. Call to schedule a consultation today.