Articles Posted in I-601 Waivers

Clients and our Blog visitors often ask me about Waivers. What is a waiver, is it a form of punishment, will it cure any Immigration violation? Certain violations of Immigration Law will make the applicant eligible for a waiver.

The most common violation is unlawful presence, and there is a waiver for this violation.

The statute, itself, defines unlawful presence as an individual who is “present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.” Additionally, the inadmissibility bar only applies to those individuals who have been in the United States and accrued unlawful presence after April 1, 1997. For purposes of INA §212(a)(9)(B)(i), unlawful presence is calculated for any unauthorized time during a single stay in the United States. Thus, if a person accrues 179 days of unlawful presence (one day short of the 180-day threshold) and departs the United States only to later reenter the United States and accrue an additional 179 days of unlawful presence, the person is not subject to the three-year bar.

With the upcoming Provisional Waiver changes, as well as the, June 4, 2012 change to allow mail requests to waive certain grounds of inadmissibility directly to a U.S. Citizenship and Immigration Services (USCIS) Lockbox facility, we have to remember that Waivers are complicated and frustrating to handle. But his article, prepared by attorney Ekaterina Powell from our office will focus on a success story we are happy to share.

For many, immigration to the United States through marriage to U.S. citizens is an easy process that leads to permanent residency within 6 months. For others, the road to permanent residency in the U.S. is a thorny one, consisting of years of separation, extreme hardships suffered by the family members, followed by administrative delays, immigration backlogs, and struggles as they go through the immigration system.

Our firm is especially happy when we are able to help our clients in a particular difficult case which results in another family being reunited.

Some great news to report for our readers. As you may know the processing of I-601 and I-212 waivers may take a very long time, often resulting is the separation of families.

If you are not familiar with Waivers, some foreign nationals may be deemed inadmissible under INA 212(a), which covers bases including unlawful presence, criminal violations, and immigration fraud or misrepresentation. If a foreign national is considered inadmissible, then he or she must obtain a waiver of inadmissibility if they are seeking lawful permanent resident status. Generally, in order to successfully obtain an I-601 waiver, you must prove “extreme hardship” to a qualifying relative is moved to the applicant’s country, and that the qualifying relative can’t remain in the US without the applicant. These hardships are also weighed against “mitigating and aggravating factors.” Currently waiver cases are filed directly with specific US posts around the world resulting in different processing times depending on where the case is filed.

Beginning June 4, 2012, individuals abroad who have applied for certain visas and have been found ineligible by a U.S. Consular Officer, will be able to mail requests to waive certain grounds of inadmissibility directly to a U.S. Citizenship and Immigration Services (USCIS) Lockbox facility. This change affects where individuals abroad, who have been found inadmissible for an immigrant visa or a nonimmigrant K or V visa, must send their waiver applications.

Last week U.S. Citizenship and Immigration Services (USCIS) posted a Notice in the Federal Register requesting public comment on its plan to create an alternative process for certain immediate relatives of U.S. citizens to apply for and receive a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States, if they can demonstrate that being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative extreme hardship. The goal of the proposed process change is to reduce the time that U.S. citizens are separated from their immediate relatives while those family members go through the consular process overseas to obtain an immigrant visa.

Currently, immediate relatives of U.S. citizens who have accrued a certain period of unlawful presence in the United States are barred from returning to the United States for as long as 3 or 10 years if they leave the country. Immediate relatives can obtain a waiver of the unlawful presence bar if they show that a U.S. citizen spouse or parent will experience extreme hardship if they are required to remain outside the United States. The immediate relative also would have to show that they warrant a favorable exercise of discretion. But in order to obtain the waiver, these individuals must depart the United States and wait abroad while the waiver is processed.

Under the current process, therefore, U.S. citizens suffer unnecessarily long periods of separation while family members go through consular processing overseas to obtain an immigrant visa. The proposed process change lessens the length of separation by reducing inefficiencies in the current immigrant visa process.