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Provisional Stateside Waivers for Unlawful Presence are Here

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).

Now this I-601 waiver has always been available to people who could otherwise legally immigrate if not for their unlawful presence bar (that is to say, beneficiaries of I-130 applications), however the major change is in the timing of the applications. Currently and in the past, once your I-130 petition is approved, you must complete the consular processing stage after returning to your country of origin. Leaving the United States triggers the 3 or 10 year bar. At the consulate interview, your application is denied because of unlawful presence, and you are then able to file an I-160 waiver. You would have to wait outside of the United States while the waiver is being processed. Because of this convoluted process, it was likely that you could be separated from your family for months while awaiting the judgement of USCIS. The new rule streamlines this process. Now, once you have an approved I-130 petition filed by an immediate relative, you can pay the consular processing fees and then immediately apply for the provisional waiver, while remaining in the U.S. Then, after your I-601 provisional waiver has been approved, you leave the U.S. for a brief period of time to attend your consular interview, after which you can return to the U.S.

We have already begun processing I-130 applications for some clients who will be applying for provisional I-601 waivers. If you have been waiting to become a legal resident, now is an excellent time to begin the process. Contact us for more information.

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