Articles Posted in I-601 Waivers

Our readers have asked for a comprehensive FAQ on this topic so we have provided the following summary for you.

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On January 3, 2013, The Department of Homeland Security (DHS) published a new unlawful presence waiver’s rule, which allows certain immediate relatives of the U.S. citizens who are physically present in the United States to request provisional unlawful presence waivers prior to departing from the United States for consular processing of their immigration visa applications.

On January 2, 2013, USCIS and Department of State held a public engagement devoted to the final rule on Provisional Unlawful Presence Waivers which was posted in Federal Register today. After several months of reviewing public comments, USCIS has announced that the Final Rule implements some of the public’s comments to the draft of the rule.

This new Provisional Unlawful Presence Waiver process allows certain immediate relatives of U.S. citizens who are physically present in the United States and are seeking permanent residence to apply for and receive provisional unlawful presence waivers before departing the U.S. for consular processing of their immigrant visa applications abroad. This new process will significantly reduce the time that U.S. citizens are separated from their immediate relatives while those family members go through the immigrant visa process to become permanent residents.

WHO IS ELIGIBLE FOR PROVISIONAL UNLAWFUL PRESENCE WAIVER

We have been expecting this day for so long, but today is the day. Secretary of Homeland Security Janet Napolitano today announced the posting of a final rule in the Federal Register that reduces the time U.S. citizens are separated from their immediate relatives (spouse, children and parents), who are in the process of obtaining visas to become lawful permanent residents of the United States under certain circumstances. The final rule establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver before they depart the United States to attend immigrant visa interviews in their countries of origin. The process will be effective on March 4, 2013 and more information about the filing process will be made available in the coming weeks.

U.S. Citizenship and Immigration Services (USCIS) received more than 4,000 comments in response to the April 2, 2012 proposed rule and considered all of them in preparing the final rule.

“The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this rule achieves,” USCIS Director Mayorkas said. “The change will have a significant impact on American families by greatly reducing the time family members are separated from those they rely upon.”
Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents must leave the U.S. and obtain an immigrant visa abroad. Individuals who have accrued more than six months of unlawful presence while in the United States must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the United States after departing to obtain an immigrant visa. Under the existing waiver process, which remains available to those who do not qualify for the new process, immediate relatives cannot file a waiver application until after they have appeared for an immigrant visa interview abroad and the Department of State has determined that they are inadmissible.

In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent. USCIS will publish a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver, for individuals to use when applying for a provisional unlawful presence waiver under the new process.

Under the new provisional waiver process, immediate relatives must still depart the United States for the consular immigrant visa process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad. Individuals who file the Form I-601A must notify the Department of State’s National Visa Center that they are or will be seeking a provisional waiver from USCIS.

Our office will attend a Phone Conference with the USCIS later today and we will provide further updates on this process in the next few weeks.

Please email us with any questions.

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The day has finally arrived!! Effective Dec. 5, 2012, applicants in Mexico may no longer file Form I-601, Application for Waiver of Grounds of Inadmissibility at the USCIS Ciudad Juarez Field Office or any associated Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal. Applicants in Mexico must now file Form I-601 and associated Form I-212 with the USCIS Phoenix Lockbox.

On June 4, 2012, USCIS adopted a comprehensive change to the Form I-601 filing process for waiver applicants located outside the United States requiring that waiver filers located abroad file their waiver application with the USCIS Phoenix Lockbox. For the first 6 months of this change, through Dec. 4, 2012, USCIS made an exception allowing Form I-601 waiver applicants located in Mexico the option of filing their Form I-601 applications and any associated Forms I-212, with the USCIS Ciudad Juarez Field Office or with the USCIS Phoenix Lockbox. This exception expired on December 4, 2012.

This announcement does not affect Form I-601 filings that may be eligible for processing by a USCIS international office due to exceptional and compelling humanitarian reasons or Form I-601 filings with the Havana Field Office for waiver applicants in Cuba.

Just a week ago, on November 30, 2012, USCIS adopted new filing policies and procedures regarding the exceptions for permitting filing Form I-601 (Application for Waiver of Grounds of Inadmissibility) and any associated Form I-212 (Application for Permission to Reapply for Admission into the United States After Deportation or Removal) at international USCIS offices. These new exceptions apply to all USCIS offices.

This new policy is a modification to the original filing process adopted by USCIS on June 4, 2012, which requires waiver applicants located outside the United States to file their Form I-601 and Associated Form I-212 with a USCIS Lockbox for adjudication by the Nebraska Service Center (NSC). The original filing process also requires that applicants in Mexico who filed Forms I-601 and associated Forms I-212 by December 4, 2012, waiver applicants in Mexico had the option of filing their applications either with the USCIS Lockbox or with the USCIS Ciudad Juarez Field Office.

Any applicants in Mexico who file Forms I-601 and associated Forms I-212 after December 4, 2012, must file with a USCIS Lockbox for adjudication.

Clients and our Blog visitors often ask me about Waivers. What is a waiver, is it a form of punishment, will it cure any Immigration violation? Certain violations of Immigration Law will make the applicant eligible for a waiver.

The most common violation is unlawful presence, and there is a waiver for this violation.

The statute, itself, defines unlawful presence as an individual who is “present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.” Additionally, the inadmissibility bar only applies to those individuals who have been in the United States and accrued unlawful presence after April 1, 1997. For purposes of INA §212(a)(9)(B)(i), unlawful presence is calculated for any unauthorized time during a single stay in the United States. Thus, if a person accrues 179 days of unlawful presence (one day short of the 180-day threshold) and departs the United States only to later reenter the United States and accrue an additional 179 days of unlawful presence, the person is not subject to the three-year bar.

With the upcoming Provisional Waiver changes, as well as the, June 4, 2012 change to allow mail requests to waive certain grounds of inadmissibility directly to a U.S. Citizenship and Immigration Services (USCIS) Lockbox facility, we have to remember that Waivers are complicated and frustrating to handle. But his article, prepared by attorney Ekaterina Powell from our office will focus on a success story we are happy to share.

For many, immigration to the United States through marriage to U.S. citizens is an easy process that leads to permanent residency within 6 months. For others, the road to permanent residency in the U.S. is a thorny one, consisting of years of separation, extreme hardships suffered by the family members, followed by administrative delays, immigration backlogs, and struggles as they go through the immigration system.

Our firm is especially happy when we are able to help our clients in a particular difficult case which results in another family being reunited.

Some great news to report for our readers. As you may know the processing of I-601 and I-212 waivers may take a very long time, often resulting is the separation of families.

If you are not familiar with Waivers, some foreign nationals may be deemed inadmissible under INA 212(a), which covers bases including unlawful presence, criminal violations, and immigration fraud or misrepresentation. If a foreign national is considered inadmissible, then he or she must obtain a waiver of inadmissibility if they are seeking lawful permanent resident status. Generally, in order to successfully obtain an I-601 waiver, you must prove “extreme hardship” to a qualifying relative is moved to the applicant’s country, and that the qualifying relative can’t remain in the US without the applicant. These hardships are also weighed against “mitigating and aggravating factors.” Currently waiver cases are filed directly with specific US posts around the world resulting in different processing times depending on where the case is filed.

Beginning June 4, 2012, individuals abroad who have applied for certain visas and have been found ineligible by a U.S. Consular Officer, will be able to mail requests to waive certain grounds of inadmissibility directly to a U.S. Citizenship and Immigration Services (USCIS) Lockbox facility. This change affects where individuals abroad, who have been found inadmissible for an immigrant visa or a nonimmigrant K or V visa, must send their waiver applications.

Last week U.S. Citizenship and Immigration Services (USCIS) posted a Notice in the Federal Register requesting public comment on its plan to create an alternative process for certain immediate relatives of U.S. citizens to apply for and receive a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States, if they can demonstrate that being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative extreme hardship. The goal of the proposed process change is to reduce the time that U.S. citizens are separated from their immediate relatives while those family members go through the consular process overseas to obtain an immigrant visa.

Currently, immediate relatives of U.S. citizens who have accrued a certain period of unlawful presence in the United States are barred from returning to the United States for as long as 3 or 10 years if they leave the country. Immediate relatives can obtain a waiver of the unlawful presence bar if they show that a U.S. citizen spouse or parent will experience extreme hardship if they are required to remain outside the United States. The immediate relative also would have to show that they warrant a favorable exercise of discretion. But in order to obtain the waiver, these individuals must depart the United States and wait abroad while the waiver is processed.

Under the current process, therefore, U.S. citizens suffer unnecessarily long periods of separation while family members go through consular processing overseas to obtain an immigrant visa. The proposed process change lessens the length of separation by reducing inefficiencies in the current immigrant visa process.