Big news in the Immigration world! Earlier this week, the Department of Homeland Security issued regulations expanding the I-601A provisional waiver to
include lawful permanent resident petitioners as well. This is great news for lawful permanent residents, or U.S. green card holders, who wish to file
immigrant visa petitions for their spouses or parents who have accrued unlawful presence after entering the United States without permission, and who require a
waiver before they can obtain their lawful permanent U.S. residency.
The I-601A Provisional Waiver
On March 04, 2013, DHS created a new process for waiving the unlawful presence penalty from within the United States, instead of from abroad, known as the I-
601A provisional waiver. Prior to this regulation, when an immigrant who had entered the United States without permission and accrued unlawful presence,
prior to obtaining a green card through their US citizen spouse the alien was required to return to their home country and file the waiver from abroad before
their green card could be processed complete at the U.S. embassy or consulate that had jurisdiction over the case. If the waiver application convinced the
adjudicating officer that the family would experience extreme hardship, then it would be granted and the applicant could continue the process of obtaining a green card.
The result of this penalty was often months or even years of separation between the intending immigrant and their US citizen or resident family members. The
immigrant would go to the consulate, pay all the required fees, do everything asked of them in order to attempt to obtain lawful status, and then be told after
the interview that they required an unlawful presence waiver and could not legally return to the United States until, and unless, the waiver was granted.
When the I-601A waiver was implemented in 2013, this arduous process was amended to the benefit of families who wanted to remain unified during this
process while still trying to legalize their immigrant family member. The waiver was able to be filed from within the United States, instead of abroad, and the
alien would not depart the United States for their consular interview in their country of birth until and unless the 601A provisional waiver was granted. The
benefit was great- a family would not be separated for no need for months or years at a time. The intending immigrant would only leave the country for their
consular interview if the waiver had been approved. If not, they could simply remain in the United States and try to file again, or wait for some other form of
immigration relief to become available. The problem was the I601A was limited to only immediate relatives (spouses, parents, and children under age 21 and
unmarried) of United States citizens.
What about people with green cards who’s spouses parents or children wanted to become legal and required a waiver of unlawful presence? Well, prior to this
week, they would be required to leave the United States for their consular interview without the benefit of filing for the waiver from within the United
States. All the time apart from family and uncertainty of whether or not the case would be granted that was mitigated with the creation of the I-601A waiver was not extended to spouses, children, and parents of lawful permanent residents.
The I-601A Expanded to Lawful Permanent Residents
On July 22, 2015, the Department of Homeland Security, DHS, in response to calls for action from the immigration community, proposed a rule expanding the I601A waiver to lawful permanent residents as well, and last week, the rule was adopted as final.
Now, the provisional unlawful presence waiver is available to all individuals who are statutorily eligible for a waiver of the unlawful presence ground of inadmissibility required before they can obtain lawful immigration status. More to the point, now lawful permanent residents, or green card holders, may file for their spouses, parents, or children over 21 from the United States first before sending their loved ones abroad without knowing whether their cases will be granted or not. This expanded provisional waiver process will also help the government streamline the waiver and immigrant visa process and promote family unity. While the intending immigrant will still have to leave the United
States to complete their immigrant visa process at a US consulate or embassy abroad, the expanded provisional waiver will drastically reduce the amount of time spouses, parents, and or children of lawful permanent residents who require a waiver for unlawful presence spend apart from their loved ones.
This is a good development!
For more information on the I601A Provisional Unlawful Presence Waiver of Inadmissibility, contact Darius Amiri, Esq. at Victory Law Group, LLP today.