Proposed rule expands I-601A waivers for undocumented immigrants
Certain family members of US citizens and permanent legal residents are getting some relief in the latest proposed rule from the DHS. Under current law, undocumented spouses and children of US citizens and lawful permanent residents who are in the US unlawfully can’t get a green card without leaving the US first. They must apply for an immigrant visa abroad (based on a petition filed by their family member) and must be interviewed by the consulate in their country, before returning to the US as a lawful permanent resident. This rule has left these family members in a difficult situation. That’s because if they leave the US in order to have their interview with their consulate abroad, they are then barred from returning to the US for either 3 or 10 years (depending on how long they were in the US illegally). The rationale for this rule is to penalize those entering the US unlawfully.
Fortunately the DHS has provided help through the I-601A extreme hardship provisional waiver. Beginning in 2013, spouses and children under 21 of US citizens were allowed to apply for a provisional waiver of the 3 or 10 year bar before they left the US. Prior to 2013, individuals could only apply after leaving the US. This was an important change since it could take a long time for the applicant’s waiver application to be granted and he/she could be left with a lengthy delay before being allowed to come back to the US even if the wavier was granted. If the applicant was denied the waiver, he/she could not return for 3 or 10 years. The 2013 rule, however, only allowed spouses and children of US citizens to apply before leaving the US. Others were still restricted to applying for the waiver after they left the US.
On July 14, 2015, DHS issued a proposed rule to further expand access to the provisional waiver program to these additional groups:
- spouses and children of lawful permanent residents
- adult children of US citizens and lawful permanent residents.
Once the rule is approved, these groups will also be able to apply for and receive their waiver before leaving the US.
The DHS also expanded the extreme hardship requirement. Under the 2013 rule, individuals had to demonstrate an extreme hardship to the US citizen spouse or parent. The proposed rule, however, provides that individuals can show extreme hardship to US citizen or lawful permanent resident spouses or parents.
The government’s rationale behind the rule expansion is to encourage eligible immigrants to complete the visa process abroad, promote family unity, and improve administrative efficiency. The reality of the new rule is that families dreading the prospect of being forced to return to their home country can take some comfort. I have seen firsthand in my practice how these rules impact families. Whether it is a mother kept from her young children or a husband and wife left without each other’s emotional and financial support, separation takes its toll and these rule changes make a big difference in client’s lives.
Although the rule has not gone into effect yet, undocumented immigrants who may be eligible can file a visa petition now in anticipation of the new law. A visa petition can take several months to several years to be approved depending on the relationship of the petitioner (spouse, child or parent). If applicants wait until the waiver is put into effect to file the visa petition they will then be waiting behind thousands of people who did file a visa petition in expectation of the new law. Visa petitions are put on a waiting list on a first come first serve basis. The sooner the petition is filed the higher up the applicant is on the waiting list.