The Citizenship & Immigration Service has released more information about the I-601A provisional waiver process set to begin on March 4. The I-601A provisional waiver process is meant to allow the immediate relatives of United States citizens to seek a waiver of inadmissibility due to unlawful presence while in the United States and prior to departing the U.S. for an interview at a U.S. consulate abroad. Under the previous procedure for seeking this waiver, an immigrant would have to depart the United States to seek the waiver, subjecting himself to the ten year bar on returning. The immigrant could apply for the waiver, which could take up to two years to be approved. However, if it were not approved, the immigrant would be barred from returning for a period of ten years. Understandably, few immigrants were willing to take this risk of separation from their family, homes and careers. By allowing immigrants to seek the waiver in the United States prior to departing the U.S., the CIS procedural change will allow thousands of immigrants to regularize their status.
The newly released question and answer memo from the U.S. CIS helps clarify some of the legalese from the official regulations released on January 2, 2012. So let’s talk procedure and, although this process applies to the children between 19 and 21 and the parents of U.S. citizens, we are going to focus on the spouses of U.S. citizens:
- First, you need an I-130 to be approved. An I-130 immigrant petition is filed by a U.S. citizen on behalf of her foreign spouse. The petition classifies the immigrant as the spouse of a citizen. An I-130 petition is filed with the CIS and must be supported by evidence of a legal and bona fide marriage. As of this moment, the CIS will deny petitions by same-sex married couples, but that does not necessarily mean that they should not file I-130s. Currently, the CIS is taking between 6-9 months to adjudicate I-130 petitions.
- Once the I-130 is approved. The CIS will send the approved petition to the National Visa Center (NVC) of the Department of State, which will initiate processing of an immigrant visa to be completed at the consulate in the home country of the foreign national spouse. To be able to file an I-601A provisional waiver application, the immigrant must initiate the consular processing by paying the immigrant visa processing fee.
- Starting on March 4, 2013, immigrants with an approved I-130 petition by a U.S. citizen spouse who have paid the immigrant visa processing fees to the NVC may file applications for I-601A provisional waivers with the CIS.
- Individuals MAY NOT FILE for I-601A provisional waivers if the applicant is: (1) inadmissible on other grounds (certain convictions, fraud, etc.); (2) in removal proceedings that have not been administratively closed; (3) outside the U.S.; (4) scheduled for a visa interview at a U.S. embassy abroad; or (5) an applicant for adjustment of status.
- I-601A provisional waiver applications have a filing fee of $585 plus the $80 biometric fee.
- Applicants must establish that the denial of a visa would cause their U.S. citizen relative extreme hardship. Extreme hardship is defined as hardship going beyond that normally suffered by a family when there is prolonged separation. In evaluating extreme hardship, adjudicators must look at the totality of the circumstances– health issues, emotional and psychological issues, financial issues, country conditions abroad, family ties in the U.S. and abroad. There is no magic formula and each case must be evaluated on its own individual merits. It is never enough to rely on generalities, but the particular hardship factors related to the individuals involved must be explored and presented.
- The filing of an application for I-601A provisional waiver will not provide any interim benefits such as employment authorization, lawful status, or protection from removal.
- Upon approval of the I-601A provisional waiver, an applicant will have to travel abroad upon the scheduling of the visa interview and apply for the immigrant visa. The approval of an I-601A provisional waiver does not guarantee visa issuance as the consulate may discover new ineligibility in the visa interview. For this reason, applicants should consult counsel prior to filing for a waiver and certainly prior to traveling abroad.
- If the I-601A provisional waiver is denied, there is no direct appeal. An applicant may file a motion to reopen or reconsider or file anew with additional evidence. The applicant may also proceed abroad and apply for the waiver at the consulate abroad.
- The CIS will adhere to its latest guidance on the issuance of Notice to Appears regarding denied applications for waivers. Under current policy CIS will not issue notices ot appear in removal proceedings unless there is evidence that the individual denied is an enforcement priority such as a convicted criminal, an individual who has committed immigration fraud or has a final order of removal.