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New I-601A Waiver Rules Scheduled to Go into Effect

The Department of Homeland Security rule to expand provisional waivers goes into effect on August 29, 2016. Currently, DHS only allows immediate relatives of a United States citizen to apply for the I-601A waiver of the 3 or 10-year bars for remittance to the United States. DHS limited the waiver to this subset of individuals to prioritize family members impacted by the bars. In an effort to expand the provisional waiver to all statutorily eligible individuals, the Department has now introduced a rule to make the expansion a reality.

Under the rule, all statutorily eligible immigrants can apply for an I-601A waiver if they are eligible for an immigrant visa and for a waiver of inadmissibility based on unlawful presence. This includes family based immigrants, employment immigrants, and a limited number of Diversity Visa program selectees. The new rule allows any immigrant that is eligible to apply for an I-601 waiver after they leave the country to now apply for the I-601A waiver prior to departing the United States for their immigrant visa interview. Additionally, the rule also would expand who may be considered a qualifying relative for purposes of the extreme hardship determination to include lawful permanent resident spouses and parents.

DHS Secretary Johnson said the expansion of the program is inline with the Department’s efforts to promote “family unity” and that the new rule seeks to encourage “eligible aliens to complete the visa process abroad, promot[e] family unity, and improv[e] administrative efficiency.” The new applications will be available on August 29 at USCIS’s website.

As a reminder, here is a list of the current eligibility requirements for an I-601A waiver before the rule change goes into effect:

  • Be 17 years of age or older.
  • Be an immediate relative of a U.S. citizen. An immediate relative is an individual who is the spouse, child (unmarried and under 21), or parent of a U.S. citizen.
  • Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
  • Have a pending immigrant visa case with DOS for the approved immediate relative petition and have paid the DOS immigrant visa-processing fee (IV Fee).
  • Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent.
  • Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
  • DOS did not initially act before January 3, 2013 to schedule your Immigrant Visa interview for the approved immediate relative petition upon which your provisional unlawful presence waiver application is based.
  • Meet all other requirements for the provisional unlawful presence waiver, as detailed in Form I-601A and its instructions.

Forms: I-601A — Application for Provisional Unlawful Presence Waiver

Fees: Filing Fee – $585 Biometrics Fee – $85
Because of the complicated nature of the provisional waiver, if you have questions about the proposed changes, edibility requirements, or are interested in applying for the I-601A waiver, you should contact an experienced immigration attorney.

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