The Misleading I-601A Waiver

On April 2, 2012, the U.S. Citizenship and Immigration Services (USCIS), with great fanfare, published a proposed rule to allow immigrants who have approved Immediate Relative petitions (i.e. U.S. citizen spouse, son or daughter over 21 years of age) to apply for a waiver of the 3/10 year unlawful presence bar “in the U.S.”  The conditional approval of the I-601A waiver by the USCIS would then make visa processing a very quick process-the time frame stated was one month.  What the USCIS did not state is how difficult it would be to get the I-601A waiver approved.  There are a number of reasons why this I-601A does not live up to its billing.

(1)  The I-601A waiver only cures an immigrant’s unlawful presence in the U.S., and does not address other grounds of inadmissibility that the immigrant may face.  For example, many immigrants have spent the majority of their lives in the U.S., and some have had the misfortune of getting arrested by the police.  If the arrest resulted in a conviction or a guilty plea, even if the plea was to a “non-significant” misdemeanor” or a violation, the USCIS will not adjudicate the I-601A waiver.  USCIS’s policy is that if there is “any reason to believe” that the applicant will be inadmissible on another enumerated ground of inadmissibility, besides unlawful presence, they will not approve the waiver.

Aside from the criminal bar, some immigrants entered the U.S. with fraudulent documents, or made a misrepresentation to an immigration officer upon inspection.  These immigrants would also be ineligible for an I-601A waiver because fraud or misrepresentation are grounds of inadmissibility.

(2)  The I-601A waiver will not be adjudicated by the USCIS if an immigrant is currently in removal proceedings.   Prior to filing the I-601A, you must get the DHS to administratively close the case (i.e. terminate proceedings).  This may not be easy to accomplish as the Assistant District Counsel with DHS/ICE is often unwilling to consent to termination, and will only agree to administrative closure.

(3)  Even if an immigrant does not fall into the above referenced categories, he/she must still prove to the USCIS that their removal would lead to “extreme hardship” to their U.S. citizen spouse or parent.   At this time, October 28, 2013, the USCIS has not given us statistics on the approval rate of I-601A waivers.

Showing extreme hardship requires extensive documentation, and can be a costly proposition, i.e. psychological report.  My feeling is that President Obama thought this process would simplify and shorten the visa processing time for applicants for Immigrant Visas, but was unaware of the roadblocks that the USCIS puts up to make this process a very difficult and expensive one.

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