Significant Changes to I-601A Waivers Go into Effect

Picture of a happy family.On July 29, 2016, the U.S. Department of Homeland Security announced a final administrative rule that will significantly expand the availability of provisional unlawful presence waivers (commonly known as I-601A waivers). The new rule goes into effect on August 29, 2016.

Foreign nationals who enter the United States illegally, are barred from becoming lawful permanent residents (“LPRs”) through the adjustment of status process. Instead, in order to become LPRs, they must leave the United States and apply for an immigrant visa at an American embassy or consulate.

However, by leaving the United States, these individuals become inadmissible to the United States based on the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”). Under IIRIRA, foreign nationals who voluntarily depart the United States after being unlawfully present for more than 180 days, are barred from re-entering the country for a period of either 3 or 10 years. (The time period is determined based on whether or not the foreign national was unlawfully present for more than one year.)

Historically, foreign nationals deemed inadmissible to the United States could apply for a waiver of their inadmissibility by filing Form I-601, Application for Waiver of Grounds for Inadmissibility. In order to be granted a waiver, the foreign national had to show that a United States citizen or LPR spouse or parent, would suffer extreme hardship if the inadmissibility were not waived.

Form I-601 could only be filed after a consular officer at a United States embassy or consulate found an individual inadmissible to the United States. Once a foreign national was found inadmissible, they had to file Form I-601 with USCIS. The foreign national had to then wait several months (or more) for USCIS to adjudicate the waiver. In addition, if USCIS denied the waiver request, the foreign national would be stranded outside the United States.

Since 2013, certain foreign nationals have been able to file for a waiver without having to first leave the Untied States under the I-601A waiver process. Under the I-601A waiver program, foreign nationals who are the spouse or child of a United States citizen, may file for a waiver, and have the waiver adjudicated, before they travel abroad for their immigrant visa interview. Foreign nationals who are applying for a waiver based on being the spouse or child of a  United States lawful permanent resident, are currently barred from the I-601A waiver program, and must still file a waiver while outside the United States.

Beginning August 29, 2016, the U.S. Department of Homeland Security is significantly expanding who may file for an I-601A waiver. First, the new rule makes I-601A waivers available to all foreign nationals who are eligible to apply for an unlawful presence waiver. As a result, many foreign nationals who have a lawful permanent spouse or parent may now take advantage of the I-601A waiver process.

Second, for the first time, the I-601A waiver process will be available to foreign nationals who are subject to a final order of removal. Currently, individuals who are subject to a final order of removal may only apply for an unlawful presence waiver abroad. Under the new rule, foreign nationals with a final order of removal, may apply for an I-601A waiver provided that they have already applied for, and USCIS has approved, Form I-212, Permission to Reapply for Admission into the United States After Deportation or Removal.

Applying for an I-601A waiver is a complex process, and should only be undertaken with the help of a knowledgeable immigration attorney. If you or someone you know needs an I-601A waiver, Hartzman Law Firm is here to help. To speak to a knowledgeable immigration lawyer, please email our principal attorney, Daniel Hartzman, at dhartzman@hartzmanlawfirm.com, or call us at (412) 495-9849.