I-601 Provisional Unlawful Presence Waiver of Inadmissibility Rule Expected by End of Year

US Citizenship and Immigration Services (USCIS) is set to issue its final rule on the I-601 stateside processing of unlawful presence waivers before the end of 2012.

Provisional waivers for unlawful presence was introduced under rule making proposed by USCIS on April 2, 2012.  Under the new rules, certain immediate relatives of U.S. Citizens may apply for a waiver of the unlawful ground of inadmissibility from the United States – if they can demonstrate that their removal would cause extreme hardship to a U.S citizen spouse or parent.

Under the current law foreign nationals who entered without inspection generally must leave the U.S. to apply for a green card abroad.  The law states that once they depart the United States, they are banned from returning for up to 10 years.  The law does include a waiver for foreign nationals if they can show refusal of their admission will cause “extreme hardship” to their U.S. citizen or legal permanent resident spouse.  Although the I-601 waiver application is currently available to those with unlawful presence, one must leave the country for the immigrant visa process, forcing you to remain in your home country for six months or more while the waiver is being processed. The new procedure will permit certain foreign nationals to apply for the waiver before departing the U.S.

While the provisional waiver allows you to remain with relatives in the United States, it does not change the existing standards for unlawful presence and extreme hardship.  Criteria include:

  • Extreme hardship must be thoroughly documented.
  • You must have an approved I-130 petition.
  • You must be physically present in the United States.
  • You must be at least 17 years old.
  • You must be actively pursuing an immigrant visa.
  • You must have paid the Department of State Immigration Processing Fees.
  • You cannot be subject to any other grounds of inadmissibility.
  • You must demonstrate that the refusal of your immigrant visa would result in extreme hardship to a United States spouse or parent.

If you require a waiver for the inadmissibility ground of unlawful presence, you should consult with an attorney to see if you qualify for the provisional waiver, and can demonstrate a sufficient hardship to your U.S. citizen relatives.



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