601 Waiver Proposed Rule Change

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Last week, the USCIS announced that it is going to propose a new rule for 601 waivers. For those of you who don’t know what this is, here is a little background information:When an alien (non-citizen) tries to get a visa or green card to the US, s/he must first prove that s/he is eligible for the visa and that s/he is admissible. This is one of the reasons that you may be eligible for a visa (like you are married to a US citizen) but you cannot get a green card. Inadmissibility issues are covered under INA § 212. The 601 waiver is a way for these aliens, who are otherwise eligible, to have their inadmissibility overlooked based on the hardship his/her absence would cause to (some of) his/her US citizen or LPR family members (spouse or parent). The 601 Waiver will only excuse certain forms of inadmissibility: health-related grounds, some criminal grounds, membership in a totalitarian party, immigration fraud, smugglers, and unlawful presence.Unlawful presence is the only inadmissibility ground addressed by this rule change. Unlawful presence in the US can trigger a 3- or 10-year bar to reentry. Put another way, if a person enters illegally, or overstays a valid temporary visa, s/he begins to accrue unlawful presence. If s/he has between 180 to 365 days, then s/he is subject to a 3-year bar to reentry. If s/he has more than one year, then s/he is subject to a 10-year bar. The catch is that the bar is triggered when the person leaves the US. So, this waiver is used to excuse the bar to reentry.

If an alien is eligible for a visa or green card (for example, based on his/her marriage to a US citizen), but is here illegally, then s/he would need to apply for the green card from outside the US and be processed through the consulate in his/her home country (thus triggering the bar and necessitating the waiver). This process can take months or years to complete, all the while keeping the family separated.

This proposed rule change will allow qualified family members (spouses, children, and parents) of US citizens to apply for a provisional 601 waiver from within the US. This allows the undocumented family member to remain in this US with his/her family while the waiver is adjudicated. If/when the alien gets the provisional waiver, s/he still must leave the US to process the green card in his/her home country. But, s/he will already have the provisional waiver. Assuming the consulate finds no additional grounds of inadmissibility, the consular processing should be significantly quicker.

There are many questions still unanswered about the logistics of this new provisional waiver. Some of my questions include whether a person with multiple grounds of inadmissibility, one of which is unlawful presence, can get a provisional waiver for that ground and then submit an additional waiver through the consulate; whether the process will be available to qualifying relatives of LPRs (not just US citizens); whether the consulate can overrule the provisional waiver or if they must give deference to the USCIS that granted it; and whether the finding of extreme hardship in a provisional waiver will be given deference, as it is also required to waive other grounds of inadmissibility. Such questions have already been asked, acknowledged and unanswered.

The proposed rule will be published in the Federal Register and opened for 60 days of public comment. The comments will then be digested and any changes to the rule will be included in the Final Rule. The USCIS estimates that the Final Rule will be published by the end of the calendar year and that provisional waivers will begin to be adjudicated. Until then, we wait.

USCIS Office of Public Engagement: Provisional Unlawful Presence Waiver Stakeholder Engagement, January 10, 2012 (teleconference)

One comment on “601 Waiver Proposed Rule Change

  1. […] my opinion) Secretary Napolitano has announced that the provisional waiver, discussed previously by myself and others, to allow close relatives of US citizens who are applying for permanent residence based […]

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