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Obama Administration Expands I-601A Provisional Waiver Program to Help More Immigrant Families

Obama Administration Expands I-601A Provisional Waiver Program to Help More Immigrant Families

In a much anticipated step, the Obama Administration has announced that USCIS will be opening up the I-601A provisional waiver program to potentially thousands more immigrant families. Under the July 22, 2015 proposed regulations, immigrants may qualify to apply for a provisional unlawful presence waiver here in the United States by showing extreme hardship to a wider group of qualifying family members. Which now includes U.S. legal resident spouses and parents. Expansion of the I-601A program will also allow beneficiaries of almost any visa petition, not just family based petitions, to apply for a provisional hardship waiver.

The expanded I-601A program should ultimately help legalize thousands of deserving immigrant families who would suffer extreme hardship if a loved one is denied U.S. legal residence.

Our law firm has written extensively on the provisional waiver program. For further background visit our I-601A provisional waiver page and our immigration defense blog.

BACKGROUND ON INADMISSIBILITY FOR UNLAWFUL PRESENCE AND THE I-601A PROVISIONAL HARDSHIP WAIVER REGULATIONS

Under immigration law, a non-citizen who has been unlawfully in the U.S. for more than 6 months is inadmissible for 3 years upon leaving the U.S., while a non-citizen who has been living in the U.S. for more than 1 year without status is inadmissible for 10 years upon leaving the U.S. This creates tremendous difficulties for families of undocumented immigrants whose lovd ones are leaving the U.S. to apply for an immigrant visa in their home countries at a U.S. consular post.

U.S. law permits USCIS to waive an unlawful presence violation, however, so that immigrants can still file for legal residency. These immigrants must file for a waiver, called an I-601 waiver. Applicants must show that visa denial would impose extreme hardship on a U.S. citizen or permanent resident spouse or parent.

Until recently, immigrants would have to leave the U.S. for months and wait in their home countries until USCIS made a decision on their waiver applications, without knowing whether their waiver case in the end would be accepted. This lengthy separation caused tremendous emotional and financial hardship as families waited months and even years to be reunited with loved ones and their main economic provider.

In 2013, Pres. Obama announced the I-601A provisional waiver program, to permit certain immigrants to apply for the waiver while in the U.S. If approved, the non-citizen would then travel to the U.S. consular post in their home country and apply for their immigrant visa to the U.S., and receive their green cards status. This program had a significant drawback, in that only non-citizens with U.S. citizen spouses or parents were allowed to apply under the I-601A hardship waiver program, leaving those with approved petitions filed by other non-citizen immediate relatives, like permanent resident spouses or parents, left out in the cold. The I-601A program also only covered immigrants applying for immigrant visas based on a family based petition, leaving out immigrants who were beneficiaries of work visa petitions, immigrants accompanying or following-to-join a non-citizen spouse or parent, and diversity visa (“visa lottery”) applicants, even if they had a qualifying family member who would suffer extreme hardship.

The Obama Administration, recognizing this unfairness, has expanded the categories of qualifying relatives to include spouses and parents who are either U.S. citizens or permanent residents. The new program also covers non-citizens applying for immigrant visas based on virtually any type of petition, whether family, employment, diversity, or accompanying follow-to-join.

When DHS announced expanding the I-601A program on November 20, 2014, advocates and the immigrant community held out hope that new regulations might clarify the “extreme hardship” requirement, and that a presumption of extreme hardship might be put in place. Such a presumption is entirely reasonable, since in the absence of a waiver families would face a ten year bar on admissibility, amounting to a decade of familial and parental separation. Disappointingly, DHS did not follow up on this issue in the proposed regulations.

Even without the extreme hardship presumption, I-601A expansion is an important step forward. The proposed I-601A regulations are pro-family and pro-child, with the possibility of keeping more and more families together, and kids safe at home with their moms and dads.

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