Keeping your family together – I-601 Waiver Applications in the USA

Filing I-601 Waiver Applications in the United States

Note: As of the date of this posting (June 15, 2012), the final rule permitting I-601 waiver applications in the USA has NOT yet been published. The comment period on the proposed rule ended last month, and it is anticipated that the USCIS will publish the final rule in the near future, with an effective date toward the end of this summer. So – be aware that this rule is NOT final yet, and do not be misled by any attorneys or notarios who tell you otherwise. Watch this blog for details as they are announced by the USCIS.

What is a Waiver?

A waiver is an application filed by an alien (non US-citizen) to ask the US government to allow the alien to return to or enter the USA. It is filed by aliens who have broken the law and cannot obtain permanent residence in the USA without receiving a waiver (permission) from the US government. Waivers are available for unlawful presence, certain crimes, and overstaying your visa, or other immigration violations.

Background:

The USCIS has recently posted a proposed rule on March 30, 2012. It proposes to allow aliens in the United States to apply for I-601 Waivers while in the United States. Previously, in order to obtain an immigrant visa, these waivers needed to be filed at the US Consulate in the foreign country. Until the waiver was adjudicated and approved by the USCIS in the USA, the consulate could not move forward with further immigrant visa process. Obviously, this meant that the alien had to spend a long time in the foreign country separated from his or her spouse and children. The proposed USCIS I-601 Waiver process alleviates that problem somewhat by permitting the applicant to file a waiver with the USCIS in the United States while they are still in the USA. If the waiver is approved, then the alien can proceed to the foreign country and have the visa interview at the US consulate in that country. This will reduce the wait outside the United States from a minimum of several months to perhaps just a few weeks.

Current status:

However, it is still not possible to file the application for provisional I-601 approval in the United States. That will be possible only after the USCIS issues a final rule on the proposed regulations. The current proposal has a comment period that extends upto June 1, 2012. At the end of that comment period, the USCIS will then consider all the comments and issue a final rule after that review. In the final rule there will be a date from which new proposed provisional unlawful presence waivers can be filed. That date is not yet known.

Application procedure, forms and fees:

The proposed provisional unlawful presence waivers will be filed on a new application form that is developed by the USCIS, which has form number I-601A, (Application for Provisional Unlawful Presence Waiver). The current application fee will be $585.00 and there will be an additional biometrics fee which is currently $85.00. There is no fee waiver available for form I-601A.

Once the I-601A is adjudicated by the USCIS in the USA, and if the provisional waiver application is approved, the alien beneficiary will have to leave the United States and travel back to his or her country for an interview at the consulate. At that interview, if there are additional grounds for denying entry to the United States, additional waivers may be necessary. Also, it is possible that at the consulate the applicant may perhaps be found ineligible for the waiver or because of certain crimes or statutory exclusions.

Warnings and limitations:

The I-601A, Application for Provisional Unlawful Presence Waiver, may be used only by immediate relatives of US citizens. At the present time, this application is not available to relatives of permanent residents.

Please note that simply because a provisional waiver application is filed with the USCIS, it does not prevent the Department of Homeland Security to continue with deportation proceedings and deporting the applicant. Also, while the application is pending, the applicant does not get any benefits such as employment authorization or advance parole.

In order to apply for this waiver, the applicant must prove that an I-130 or I-360 petition classifying him or her as the beneficiary has been approved by the USCIS and that the visa application fee has been paid to the Department of State.

Conclusion:

The benefits of the ability of applying for I-601 waiver within the United States are significant. The most important benefit is of course, preserving family unity. A second benefit is that the applicant does not have to wait in a unsafe or hostile environment without any source of income while the USCIS is making a decision on his or her provisional waiver application. The third is that in preparing a waiver application, additional facts or problems may be discovered. These additional details may help an applicant decide whether a waiver application is likely to succeed or fail.

Waiver applications are complex and should be carefully prepared. You should consult an experienced immigration attorney before filing a waiver application.