I-601 Waiver Applications - Misconceptions Concerning the Proposed Rule Change

The US immigration law community welcomed the January 2012 announcement of US Citizenship and Immigration Services (USCIS) that it intends to allow certain persons subject to the 3 or 10 year bar for unlawful presence to file their I-601 waiver application in the United States, allowing them to remain in the country while the waiver application is pending. Under current rules, immediate relatives (i.e., spouses and children) of US citizens who are otherwise eligible for a green card have to leave the country and apply abroad for an I-601 waiver. Because it can take many months for USCIS to make a decision on an I-601 waiver application and because the applicant cannot re-enter the US without first being granted this waiver, they are often separated from their families who are in the United States for long periods of time. Under the proposed rule change, the person files the I-601 application while still in the US and gets a "provisional" decision that becomes formal once they go to their US visa interview at a US embassy or consulate abroad. Because of this, USCIS refers to the waiver as a Provisional I-601 Waiver – it is, in practice, the same as a normal I-601 waiver. Much confusion persists concerning the Provisional I-601 Waiver. This article dispels five of the most common misunderstandings related to the proposed new I-601 waiver rule. To learn more about I-601 waivers, or for help applying for a Provisional I-601 Waiver once the rule actually goes into effect, please contact a Dallas immigration lawyer from the law firm Heartland Immigration today: 1-855-USA-IMMIGRATE

Top 5 Misconceptions About the (proposed) I-601 Provisional Waiver Program

1. The change will allow people to get a green card without leaving the US. Persons who are inadmissible to the US (sometimes referred to as ineligible) for having been unlawfully present for more than 180 days will still have to leave the country under the proposed change to the I-601 waiver application process. They cannot get a green card in the US through the process known as adjustment of status, but rather must have a visa interview at a US embassy or consulate abroad, and get an immigrant visa to be able to travel to the US. The change will allow them to stay in the US while the I601 application is pending, but once they get the green light on that application, they still have to go abroad for the immigrant visa interview.

2. The change will make it easier to get an I-601 waiver. The proposed change will only alter when the I-601 application can be submitted and where; it will not change the US immigration laws bearing on what it takes to actually qualify for the I601 waiver. Persons will still have to meet the I-601 extreme hardship standard, meaning they will have to show that their US citizen parent(s) or spouse would suffer extreme hardship in the event that the applicant was not allowed to live in the United States. What constitutes "extreme hardship" in the I601 immigration waiver context is tough to nail down; we advise consulting an immigration attorney for assistance trying to prove to USCIS that this standard is met in your I601 waiver case.

3. The change will benefit people who are inadmissible for things other than an overstay. There are many things for which a non-citizen can be deemed inadmissible to the US under United States immigration law. This proposed I-601 application change would only apply to persons who are inadmissible only due to unlawful presence in the United States.

4. The change will allow people who are already outside the US and who have already filed Form I-601 to speed up the process. A person who is overseas and who has already filed their I-601 waiver application will not benefit under this proposed change. They must still wait, overseas, for the decision on their waiver application before they can get their immigrant visa and then travel to the US, where they will get their green card.

5. Applying for an immigration waiver under the new rule will not entail any risk. An immigration attorney will generally caution any non-citizen to seek professional immigration advice before submitting anything to the immigration authorities, as sometimes a person ends up getting deported after they make the immigration authorities aware of their unlawful status. With respect to the provisional I-601 waiver, a person who fails to sufficiently demonstrate extreme hardship would have their application denied, and could be deported by US immigration authorities. Additionally, the person may be inadmissible based on additional grounds that come to the attention of the authorities only upon the submission of the I601 waiver application.

An immigration attorney from the Heartland Immigration law firm will be happy to speak with people who are interested in finding out more about the I-601 Provisional Waiver program, or who would like help applying for an I-601 waiver in the US once the proposed rule goes into effect, or from overseas right now. Call Heartland Immigration today for immigration guidance: 1-855-USA-IMMIGRATE