How Will the New I-601A Rule Affect Foreign National Workers, Families and Individuals in the U.S.?

Our staff attended the U.S. Citizenship and Immigration Services (USCIS) Public Engagement Session on Tuesday, September 20^th 2016, where USCIS discussed the new i-601A Provisional Waiver Rules. We have noted points of interest and would like to share this information with you.

What is the original provisional waiver rule?

In 2013, the original provisional waiver was implemented as a way for those living in the U.S. without status who were spouses, parents or children(aged 17-20) of U.S. citizens with approved green card petitions to obtain a waiver for their unlawful presence.  While the applicant could still not apply for the green card in the U.S., the law allows an applicant to apply for a green card at a U.S. consulate abroad without being penalized for being in the U.S. out of status.  In order to obtain the waiver, the applicant must be able to show extreme hardship to a U.S. citizen spouse or parent.

What has changed based on the New Rules?

• The waiver can now be used for all immigrant petitions including all family members of U.S. Citizens and Legal Permanent Residents (siblings and adult children are now included), employment-based immigrant petitions, diversity lottery selectees and certain special immigrants.
• The waiver can now be approved based on extreme hardship to either U.S. Citizen or Legal Permanent spouses or parents.
• The waiver is now available for people with prior deportation orders.
• Previously, the waiver was only available for those whose visa interview was scheduled on January 3, 2013. This date restriction has been removed and those with interviews scheduled prior to this date may now apply.

What were some of the common questions that came up during the Public Engagement Session?

• What provisions stayed the same? The general eligibility criteria and the extreme hardship requirement remains the same. The waiver does not confer interim benefits such as employment authorization or travel document nor does it provide lawful status. The applicant still needs to attend a visa interview abroad and does not guarantee entry to the U.S.
• Do you have any filing tips for a successful application? USCIS recommends that applicants review the filing tips here to avoid the rejection or delay in processing the application. Review the filing instructions and tips on the I-601A page. Make sure to sign in black ink, submit the correct fees and complete all the information requested on the form. Do not forget to include the immigrant visa fee receipt showing that the fee has been paid. Unpaid invoices are insufficient to show visa fee payment.
• What about other family members or derivative applicants? Derivative applicants (spouses and children) must independently prove that they qualify for the waiver. This means that they must prove that they meet the eligibility requirements including a qualifying relative who will suffer extreme hardship.
• Are parents of U.S. Citizens or Legal Permanent Residents eligible? Currently, parents of U.S. Citizens and Legal Permanent Residents are not able to use extreme hardship to a U.S. Citizen or Legal Permanent Resident child. In order to be eligible, the applicant must show extreme hardship to a spouse or parent.
• I’ve had a voluntary departure order? Can I still qualify? Individuals with a voluntary departure and did not leave, would be able to qualify for the waiver. However, if the individual left the U.S. pursuant to a voluntary departure order and is still abroad, then the provisional waiver does not apply.

The waiver application procedure could be lengthy and can get very complicated due to the discretionary nature of the process. The provisional waiver only waives unlawful presence and does not waive other inadmissibility issues. If you think you are eligible for this or other immigration waivers, it is important to seek the advice of an experienced immigration attorney who can evaluate your case and provide you with your immigration options.

RELATED CONTENT:

• A New Immigration Rule that May Help You – Can I get a green card if I live in the U.S. without any legal status? What is the New Provisional Waiver Rule?
• What is Extreme Hardship? Extreme Hardship Explained and How it is Used to Obtain a Green Card Waiver
• Eligibility for 601A Provisional Waiver of Unlawful Presence – Some Examples of Possible Successful Strategies