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Update on Expanded I-601A, Provisional Unlawful Presence Waiver

United States Citizenship and Immigration Services recently announced a rule change to the I-601A Provisional Waiver process and expanded its eligibility guidelines.  The issues at hand are complex. As a result, this announcement has spurred misunderstanding, misinformation, and confusion mixed with the hope and dreams of millions of people without lawful status in the United States.  We’ll do our best to clarify the changes.

The Requirements

Let’s start with the above-the-fold, need-to-know information.  Individuals who meet the following standards are eligible to apply for an I-601A waiver under the expanded guidelines:

  • Be 17 years of age or older.
  • Be a spouse, child, or parent of an unmarried child under 21 years of age of a United States Citizen or Lawful Permanent Resident
  • Have an approved I-130 or I-360 petition.
  • Have a pending immigrant visa case with the Department of State based on the approved I-130 or I-360 petition and have paid the Department of State 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 or LPR spouse or parent.
  • Be physically present in the United States to file your application for a provisional unlawful presence waiver (I-601A) and provide fingerprints.
  • The Department of State 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.
  • You are inadmissible ONLY for unlawful presence in the United States for more than 180 days but less than 1 year during a single stay (INA § 212(a)(9)(B)(i)(I)), or unlawful presence in the United States for 1 year or more during a single stay (INA § 212(a)(9)(B)(i)(II)).

The Details

A.  Some Background on The Waiver

There are two ways to become a lawful permanent resident (“LPR”) (commonly known as a “green card”).  The first is through “adjustment of status” – obtaining one’s LPR status from within the United States.  The second is through “consular processing” – obtaining one’s status through a consulate overseas.  Some people who are already present in the United States can simply adjust their status without having to leave, as long as they have a petitioner – such as an employer, US citizen spouse or another close relative – who can file a petition for them.  The I-601A waiver does not apply to them.

Other people who are in the United States are not eligible to adjust their status.  These people, such as those who entered without inspection by an immigration officer, are required to return to their home country and consular process.  For this group of people, even if they have a U.S. citizen spouse, U.S. citizen children, or other U.S. citizen family, and even if they’ve lived in the U.S. for years, worked, and paid taxes, they must leave the country and seek their permanent residency overseas.  But…..

There’s a law, often referred to as the “departure bar,” which creates a huge impediment to people who have to leave from obtaining their status.  For people who have been present in the U.S. for 180 days to one-year without lawful status, upon leaving the U.S., a bar to reentering for three years kicks in.  For people who have been present without status for one year or more, the bar is ten years.

The effect of these bars discourages most people who would be otherwise eligible to obtain LPR status from doing so.   And while is a waiver of these bars was available, until 2014, people could not apply for this waiver until after they left the U.S.  If the waiver wasn’t approved, they were stuck outside the U.S., often leaving their spouses, children, and parents behind without their love and support. It was a special kind of irony that a waiver designed to prevent hardship caused by the absence of a relative could only be obtained by leaving the country and thus actually visiting that hardship upon the relative.

In 2014, the Obama administration altered the rules to obtaining this waiver of the departure bar.  The “provisional unlawful presence waiver” (form I-601A) allowed people who needed to leave the U.S. but who would be subject to the departure bar, to apply for the waiver prior to leaving.  Thus, they would know in advance whether they will be stuck outside of the U.S. for years, or just weeks.

B.  The Expanded Waiver: Includes Spouses and Children of U.S. Citizens and Lawful Permanent Residents

USCIS has now expanded that program. The rule change expands the population eligible for the I-601A waiver to include spouses and children of both Unites States citizens and those living in the country with LPR status. The expanded eligibility guidelines are estimated to include an additional 100,000 individuals according to the Department of Homeland Security. This ensures that fewer families will be forced to endure a separation that will visit extreme hardship upon them.

C.  I-601A Can Now Be Used In Conjunction With I-212 Waivers

The rule change also affects some foreign nationals who have orders of deportation or removal outstanding against them.  Separate from the departure bar, Individuals who leave the country after being ordered deportation (removed) are barred from re-entering for twenty or more years following their exit. Under the new rule, individuals who have been ordered removed will be eligible for an I-212 waiver in conjunction with an I-601A waiver.  If approved, the I-212 waiver will waive the bar to reentry after deportation and the I-601A waiver will waive the departure bar.

D.  No Longer Denying for “Reason to Believe” Standard.  Is That a Good Thing?

The new rule is not without some complications, however. In the past a foreign national looking to receive an I-601A waiver could be denied by USCIS on the basis of what is known as a “reason to believe.” The “belief” that USCIS has “reason” to hold is that an individual is likely to be denied reentry by the consulate for reasons other than just the departure bar (such as prior criminal history or immigration fraud) that they are seeking an exception to. If USCIS has “reason to believe” that they would be prevented from entering the country the I-601A waiver would be denied. Part of the new rule change is that USCIS will no longer be issuing denials based on the “reason to believe.”

While this is partially a positive development, as a “reason to believe” is discretionary and can be issued absent definitive evidence, it does serve an important purpose. The “reason to believe,” while potentially arbitrary, also provided the foreign national advance warning that their re-entry to the country might be denied regardless of whether or not they received a provisional I-601A waiver. With this rule change it becomes more likely that individuals will receive an I-601A waiver approval, leave the country for a visa interview, and then discover they are prohibited from entry via other bars that they were unaware of. This is the exact scenario that was meant to be avoided when new guidelines allowing for the application of an I-601A waiver without leaving the country were instated.

In Conclusion….

Overall, the new rule is certainly a step in the right direction. Extending eligibility for the I-601A waiver to include immediate relatives of LPRs in addition to United States Citizens will allow upwards of 100,000 people a reasonable path to maintaining a legal status in the United States. At the same time, their continued presence in the country will prevent their families from undergoing the extreme hardship that would be caused by their absence. Additionally, providing an avenue for those with orders of removal to waive the prohibitions that prevent their re-entry to the country stops people from being left out of these new guidelines and maintains a consistency of legal enforcement, not to mention preventing further hardship to their families.

A word of caution is still warranted though for those intending to apply for the I-601a waiver. Be sure to examine your case and consult with an attorney before leaving the country to ensure that even if you do obtain the I-601A waiver that additional prohibitions will not prevent your re-entry.   The process can be complex and difficult to navigate, and the consequences of errors grave, so competent assistance is essential.

Lucas Caress