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Overcoming the 3 and 10 Year Bars For Unlawful Presence: Changes in Procedures for a Provisional I-601 Waiver

This week, the Chicago Tribune reported that President Obama has moved forward with his plans to modify the waiver procedure for aliens with unlawful presence in the United State by allowing the beneficiaries to apply for a provisional waiver while remaining in the United States.


On Monday, the Department of Homeland Security will post for public comment an administrative change intended to reduce the time illegal immigrants would have to spend away from their families while applying for legal status, officials said. The current system requires the applicant to first leave the U.S. to seek a legal visa, but under the proposed change illegal immigrants could claim the time apart from a spouse, child or parent would create “extreme hardship” and allow them to remain in the U.S. as they begin the process. Once approved, the person would be required to briefly leave the country to pick up the legal visa abroad. (Chicago Tribune March 30, 2012)


The Proposed Rule for Provisional I-601 Waivers of Inadmissibility was published this week in the Federal Register. The rule applies to immediate relatives of U.S. Citizens who are inadmissible due to accumulated unlawful presence due to entering the United States without authorization or remaining in the U.S. beyond their authorized period of stay before departing.

Under current immigration law, once an alien is unlawfully present in the United States for more than 6 months but less than a year, he or she is subject to a three-year bar from returning to the United States in any legal capacity. Unlawful presence for more that 1 year subjects the non-citizen to a ten-year bar. The bars are triggered once the non-citizen leaves the United States. The USCIS has discretion to waive the unlawful presence grounds of inadmissibility by way of an I-601 waiver application.

Although the proposed rule allows the beneficiary of an I-130 family based immigration petition to stay in the United States while his I-601 waiver is being processed, the non-citizen must still depart the country to consular process his immigrant visa application from his home country. The proposed rule does not change the eligibility requirements for a waiver of inadmissibility. The filing of the I-601 Provisional Waiver does not confer any legal status, protect against the accrual of additional unlawful presence, or authorize an alien to enter the United States with out legal authorization. However, the proposed rule significantly reduces the amount a non-citizen has to spend separated from his immediate relatives in the United States while overcoming the issue of the 3 and 10 year bars.

To be successful in a waiver of inadmissibility, the beneficiary must successfully prove “extreme hardship” to the qualifying United States Citizen relative by way of documents and hard evidence. The level of proof for extreme hardship is high, and assembling the proper evidence should be done strategically. You should always consider consultation with an immigration attorney experienced in waivers of inadmissibility before attempting an I-601 application on your own.

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