Articles Posted in I-601 Provisional Waivers

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At the beginning of the year, USCIS introduced the I-601A Provisional Waiver for Unlawful Presence. This post will focus on the extreme hardship standard that must be met for this type of waiver. If you qualify, you must be able to prove extreme hardship to a U.S. citizen spouse or parent. This person is known as the qualifying relative.

“Extreme hardship” must be proved by showing that the hardship the qualifying relative will experience if the alien is denied admission will be more than normal. It is important to prove two things: (1) why the qualifying relative cannot move abroad, and (2) why the qualifying relative cannot live in the U.S. without the alien.

The following are a couple of strong examples of extreme hardship:

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An I-601A waiver only waives the unlawful presence element of inadmissibility. Unlawful presence refers to unauthorized periods of stay in the US. You may qualify for a waiver if you can prove that a qualifying relative, which is defined as a United States’ citizen parent or spouse, will suffer extreme hardship if you are not admitted to the US.

Applicants must provide substantial documentation of the extreme hardship that the qualifying relative will experience if he or she remains in the US without the applicant or he or she leaves the country with the applicant. Extreme hardship is determined by the facts and circumstances of each individual case. However, it must be more than the hardship that would be experienced as a result of removal or separation. Some factors that could be considered when determining whether a qualifying relative will face extreme hardship are: economic detriment, efforts required in relocating to another country, adjusting to life in another country, and integrating into a different society.

Keep in mind that there are 3 and 10-year bars to re-entry into the U.S. The 3-year bar applies to individuals who have been unlawfully present in the U.S. for an uninterrupted period of more than 180 days, but less than one year, and who voluntarily depart the U.S. The 3-year bar begins when the individual departs the U.S.

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Now that the new Provisional Waivers for Unlawful Presence are in place, I am getting many phone calls from people who are inquiring as to whether they qualify for the waiver. There are many misconceptions about this from person-to-person communication and on the Internet, so I want to use this blog post to again define the qualifications for I-601A applicants.

1. The I-601A only waives the Unlawful Presence ground of inadmissibility. If you have any other factors that make you inadmissible (multiple undocumented entries into the United States, criminal issues, previous removals) then you cannot use the I-601A. Absolutely seek the counsel of an experienced immigration attorney if you have any doubts about this.

2. You must be the beneficiary of an approved immediate relative petition. That means you must have a United States Citizen Spouse, Child over 21, or Parent (if you are under 21) who can petition for you.

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Not everyone is eligible to apply for an I-601A waiver (a.k.a. the I-601 provisional waiver). If any of the six criteria below applies to you, you are not likely to be eligible to apply for an I-601A waiver:

  1. You not are physically present in the United States
  2. You are 16 years of age or younger
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For many months, I have been blogging about the hotly anticipated I-601 provisional waivers. After the proposed rule was announced there were several months allowed for interested parties to comment on the rule and then there was a much longer period of silence from USCIS. Finally, last Wednesday, USCIS announced that it had settled on language for the rule and would begin accepting application in early March of this year.

It is estimated that nearly 1 million people in the United States illegally could be helped by this rule change which makes it less painful for hopeful immigrants to become legal. Under current U.S. law, after an immigrant is in the country illegally for more than 180 days, he is barred from legally immigrating for a full three years from his date of departure. If the illegal immigrant is here for over one year then he must leave for 10 years before it is possible to apply again for legal status.

Immigrants subject to the 3/10 year bar have some relief from these onerous penalties in the form of an I-601 waiver. If an immigrant has a qualifying U.S. citizen relative, he can apply for a hardship waiver for his unlawful presence, showing USCIS that if he were forced to leave the country, his qualifying relative would be subject to extreme hardship (which is not well-defined, but see my previous post for more details).

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There are only 7 working days left in 2012 and USCIS remains silent on provisional waivers for unlawful presence. Although there is no reason to suspect that the rule change WON’T be implemented, it now seems unlikely that it will happen before next year.

To review once more, USCIS is expected to create a new rule which will make it easier for some people to become legal immigrants to the U.S. Existing law is very harsh on people who are in the U.S. illegally–people who are here illegally for more than 180 days are prevented from immigrating legally for 3 years once they leave. Even more harsh, people in the U.S. illegally for one year or more are prevented from immigrating legally for 10 years.

Long term, many people in favor of immigration reform would like to see this 3/10 year bar relaxed because it makes it very difficult for people to become legal immigrants once they have stayed in the U.S. illegally for even a relatively short amount of time. However, current law does allow some relief in the form of I-601 waivers. If an immigrant who is subject to the 3/10 year bar can show that his absence would cause extreme hardship to a U.S. citizen family member, he can receive a waiver that allows him to immigrate legally without waiting for his bar to expire.

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The reelection of Barack Obama has alleviated some concern that the approval of the proposed stateside processing of I-601 waivers might be halted. It now seems likely that the rule change will be approved before the close of 2012. To recap: the new rule would allow visa applicants who are present in the U.S. illegally to apply for a waiver of their inadmissibility while remaining in the States. Previously, these applicants would have to return to their country of origin before they were allowed to apply for the waiver.

In order to apply for an I-601 waiver, a prospective immigrant must already have a notice of approval from an I-130 application (a petition for an immigrant visa from a qualifying relative). Currently, I-130 applications take about five (5) months for approval so with the approval of the stateside waiver process looming, now may be a good time to start your application. It’s important to remember that the stateside waiver rule is limited to a very specific class of applicants. The process is only available for waiver of unlawful presence (i.e. people would otherwise be subject to a 3/10-year bar if they left the U.S.) and the applicant must show that their removal would cause extreme hardship to a US citizen relative.

Extreme hardship can be difficult to prove and assembling a solid case requires expertise and time. If you think you might benefit from the proposed stateside waiver rule, now would be an excellent time to speak to an experienced immigration attorney. Because the law in this area is so complex, only an experienced attorney specializing in immigration will be able to assess your case and determine if you qualify for stateside processing.

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This week I want to take some time away from the Deferred Action for Childhood Arrivals Program (DACA) and switch back to the topic of the anticipated I-601 stateside provisional waiver procedures. Provisional waivers for unlawful presence was introduced under rulemaking proposed by USCIS on March 30, 2012. (The Rulemaking is not final as yet) Under the new rules, certain immediate relatives of U.S. Citizens may apply for a waiver of the unlawful ground of inadmissibility from the United States, if they can demonstrate that their removal would cause extreme hardship to a U.S citizen spouse or parent. This new rule can have profound implications to many immigrants with unlawful presence who are the spouse or adult child of a US Citizen. Although the I-601 waiver application is currently available to those with unlawful presence, you must leave the country for the immigrant visa process, forcing you to remain in your home country for six months to a year or more while the waiver is being processed. If granted a provisional waiver here in the United States, you still have to return to your home country to process your immigrant visa, but the time spent away from your family in the Unites States would be significantly lower. Most importantly, you would know if your waiver was granted before you leave the country – significantly improving your chances of being granted a visa (assuming you do not have any other grounds of inadmissibility.)

While the provisional waiver can make your life easier by allowing you to remain with your relatives in the United States, it does not change the existing standards for unlawful presence and extreme hardship. Extreme hardship is a threshold issue, and must be thoroughly documented. It is not enough that you would be sad or depressed if forced to be separated from your family. The standards are tough, and are defined mostly in the case law, decisions of Bureau of Immigration Appeals and Administrative Appeals Office. It is important you find an attorney who is familiar with the current state of the law regarding extreme hardship, and who has experience in documenting the hardship to the satisfaction of the adjudicator.

In order to apply for a provisional waiver, you must have an approved I-130 petition. You must be physically present in the United States and at least 17 years old. You must be actively pursuing an immigrant visa, and have paid the Department of State Immigration Processing Fees. You cannot be subject to any other grounds of inadmissibility, and must demonstrate that the refusal of your immigrant visa would result in extreme hardship to a United States spouse or parent.

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In the near future, USCIS will be announcing the availability of stateside I-601 waivers for unlawful presence. Most of the excitement surrounding this change revolves around the fact that most of the application process can be completed in the United States. The immigrant only needs to return to his home country for a short time near the end of the process.

However, it’s important to keep in mind that these waivers only apply to immigrants who can benefit from an I-130 application filed by a relative who is either a U.S. Citizen or legal permanent resident. Additionally, the waiver is only granted to immigrants who can show that their absence will result in “extreme hardship” to their qualifying relative.

The difficult part of filling for an I-601 waiver is proving extreme hardship–there is no universal definition of the term. But lawyers have, through experience, determined the types of cases that are successful and those that are not.

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