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Law Office of Jessie M. Thomas

Expanded I-601A Waivers. On July 28, 2016 the Department of Homeland Security announced the final rule for expanding the I-601A provisional waiver program. This is a big change to the current program and should improve the logistical issues associated with the the current waiver process. Although this doesn’t fix the problem for everyone, it is a very good start.

The I-601A provisional waiver was created by the Obama Administration in 2012 to allow people subject to the 3 and 10-year bars to apply for a waiver of inadmissibility before they leave the United States to consular process their visas. The old way of doing things required you to leave and then apply for a waiver from outside the United States. That process often resulted in the beneficiary being stuck in their home country for months or years while waiting on the waiver decision.

Since March 4, 2013, certain immigrant visa applicants who are immediate relatives (spouses, children and parents) of U.S. citizens could apply for provisional unlawful presence waivers before they left the United States for their consular interview. On August 29, 2016, (the effective date of the final rule) the provisional unlawful presence waiver process was expanded to all individuals statutorily eligible for an immigrant visa and a waiver of inadmissibility for unlawful presence in the United States.

So, what does the new rule change? One very significant thing:

Anyone Eligible for an Unlawful Presence Waiver Can Now File Provisionally (File Before Leaving the United States). This move expands the ability to file the provisional waiver on Form I-601A to anyone who would be eligible for an unlawful presence waiver. So basically, anyone who has an approved immigrant visa (I-130, I-140, diversity, I-360) AND who has a U.S. Citizen spouse or parent or Lawful Permanent Resident spouse or parent AND can show “extreme hardship” if they were separated from the beneficiary may be eligible to apply for the I-601A Provisional Unlawful Presence Waiver. The beneficiary has to be physically present here in the United States when the waiver is filed. Once it is approved, the person can consular process their visas. However, there is no new guidance on the “Extreme Hardship” standard. It was announced at the American Immigration Lawyers Association (AILA) Annual Conference open forum with USCIS that they would be announcing this guidance soon.

Other Considerations

There are additional changes that are significant. One is that the USCIS will no longer deny the I-601A for “reason to believe” the applicant is subject to other grounds of inadmissibility. This change is good because the “reason to believe” denials are sometimes based on nothing more than the immigration officer’s suspicions. However, this change could have unintended consequences because a person may end up processing their visas abroad only to find out that they do in fact have some other ground of inadmissibility and need to apply for another waiver. This might lead to more people getting stranded outside the United States, especially those who file without a competent immigration attorney that analyzes their case for all possible grounds of inadmissibility.

Another change is that the provisional waiver will be available now even if you had a visa interview scheduled before January 3, 2013. That was a ridiculous addition to the original rule, which seemed designed solely to prevent people from “gaming” the system when they were already in line for waiver interviews outside the United States. If those folks are still in the United States because they ended up ineligible for provisional waivers, they will be eligible now.

All of these changes highlight the complexity of the current immigration system. Congress could easily simplify all of this by eliminating the 3 and 10-year bars. While the 3 and 10 year-bars were intended to encourage people to not be in the United States unlawfully, the reality is they encourage people to stay in the United States without status. The result is the creation of extreme penalties that are triggered only when you leave. For most people, that makes leaving a non-option, even if they would otherwise be eligible for a visa to come back. This is because the risk of an immediate relative (e.g., mother or spouse) getting stranded in another country for 3 to 10 years is, for most of us, too high.

To learn about how the new rule changes may affect your I-601A filing or your ability to file provisionally please contact the Law Office of Jessie M. Thomas at (214) 838-0045. An experienced immigration waiver attorney is available to answer your questions. You may also request a free case evaluation via our online contact form at www.staylegally.com/contact/