New Rule promises to be a boon to Undocumented Immediate Relatives of US Citizens
© Attorney Farhad Sethna 2013
On January 3, 2013, the U.S. Department of Homeland Security published a final rule that set out the process of applying for a waiver of unlawful presence for immediate relatives (spouses, parents and unmarried children under 21) of U.S. citizens. This is a great improvement from the previous rule, which covered only spouses of U.S. citizens. The following discussion is only a summary of some of the points in the very lengthy final rule, and does not cover each and every detail.
The process will become effective on March 4, 2013. The process will require a new waiver form I-601A. The waiver is filed by the qualifying alien relative, and not by the US citizen immediate relative. The filing fee is expected to remain at $ 585 (the same as for the form I-601) plus the biometrics fee (currently $ 85).
WHY IS THE WAIVER NECESSARY? HOW DOES IT HELP?
Previously, a relative of a U.S. citizen who had accrued more than 6 months of unlawful presence in the USA had to leave the US and apply for a waiver at a US consulate overseas a process that could last months! Under this new waiver process, the relative applies for while still in the USA. Once the waiver is approved, the alien relative then travels back to his or her home country, receives the immigrant visa, and returns to the USA. This process will eliminate months of agonizing stay in the home country.
As stated above, the waiver process will become effective only in March 4, 2013. It is anticipated that many tens of thousands of waivers will be filed. Waivers can be obtained only for immediate relatives of US citizens.
WHO CANNOT FILE?
You cannot apply for a unlawful presence waiver if you are currently in removal proceedings or have already been ordered removed, excluded or deported from the USA. Further, if you have already scheduled your immigrant visa interview prior to January 3, 2013, you cannot file this waiver. Also, you cannot file this waiver if you are not able to establish that the denial of your admission into the USA will result in extreme hardship to your US citizen petitioning relative. Also, the waiver resolves only unlawful presence issues. A separate waiver is needed to waive other grounds of inadmissibility such as criminal convictions or repeated illegal reentry.
WHAT MUST YOU PROVE?
An applicant must already be the beneficiary of an approved petition as an immediate relative of a US citizen in order to apply for and receive the provisional waiver.
An applicant must also be over age 17 and must prove that the denial of reentry to the USA will result in extreme hardship to the US citizen petitioner or immediate US citizen family member.
The I-601A waiver can only be filed if the I-130 application has already been approved. Once the waiver application is approved, the I-130 approval and the I-601A waiver approval will be processed at the National Visa Center. In the event that a visa interview has already been scheduled before January 3, 2013, at a US Consulate, then the waiver cannot be filed with the USCIS. It is possible that these guidelines will change as the USCIS encounters its first cases and begins to streamline and modify their procedures.
The I-601A waiver process is not effective until Monday, March 4, 2013. No one should file a waiver application before that date, else the application will be rejected and returned. It is highly recommended that any applicant seek qualified legal advice for these complex applications.
Further information will be available on my website as additional details become available.
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. His practice is limited to immigration and small business. With offices in Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.