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I-601A Provisional Waiver is Announced

Yesterday, the US Citizenship and Immigration Service announced its final rule pertaining to the previously-announced I-601A Provisional Waiver process to permit families to remain united while USCIS decides whether to permit an individual with unlawful presence to remain in the United States. The announcement, posted in the Federal Register, is aimed at reducing the amount of time that US citizens are separated from their spouses and/or children who are seeking visas abroad to enter the United States as lawful permanent residents. Under these new rules, effective on March 4, 2013, individuals with unlawful presence in the United States and who face a re-entry bar upon leaving can seek a waiver of forgiveness before leaving the United States, thereby avoiding the hardship imposed on their US citizen relatives while the waiver is being adjudicated. Under the current law, waivers can take months to be processed, often leaving families separated for extensive periods of time while awaiting agency action.

For purposes of background, an individual over the age of 18 who is in the United States without lawful status begins to accrue "unlawful presence" while physically in the country, with a few exceptions provided to those with pending applications and other unique circumstances. For the vast majority of these individuals, this unlawful presence does not result in a specific penalty until over 180 days of unlawful time is accrued, which results in a three-year bar from re-entering the United States. For individuals in the United States with over one year of unlawful presence, the re-entry bar becomes 10 years. The only route in which an immigrant can seek to get rid of this bar is to either: (1) wait for the time bar to expire, which can result in an extensive separation from family, or (2) seek a waiver of inadmissibility, during which time an applicant would have to prove "extreme hardship" to his/her US citizen or permanent resident spouse or parent to be approved. Extreme hardship is not a defined term under current immigration laws, but is a "totality of the circumstances" test, meaning that USCIS is to consider all of the factors in the US citizen's background to determine whether he/she will face such a high level of hardship (such as substantial family separation, significant health concerns, financial impact of departure, lack of suitable medical care in the country where relocation would be required, etc.).

Prior to the implementation of this new waiver process, a waiver could only be sought after an immigrant spouse had departed the United States, finished all document processing, conducted his/her interview at the US Consulate and had been rejected for a visa, all of which could take months to complete. This new waiver process permits an individual to apply for a waiver before leaving the country, which would undoubtedly reduce the stress associated with family separation. While the details of the process are still being determined, preparing now is likely a smart move, given that waivers are very time consuming filings to construct. This is a step in the right direction for USCIS and will help provide some stability and relief to families dreading what was otherwise going to be a very long wait.

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