Ineligible to Adjust Status? I-601A Available for Visa Petitions
Finally, more than one year after publishing a proposed rule to expand eligibility for I-601A provisional waivers of inadmissibility due to the “3 and 10-year bar” for accrual of unlawful presence in the US, the DHS has made the rule final. On August 29, 2016, USCIS will begin accepting I-601A Applications for Provisional Waiver of Unlawful presence bar for anyone who is eligible for a waiver, regardless of their I-130 or I-140 visa classification. The rule expands eligibility to all foreign nationals in the US, who are technically ineligible to adjust status and get their green card in the US, but statutorily eligible for an immigrant visa and for a waiver of inadmissibility due to the unlawful presence bar.
The provisional waiver policy was implemented in 2013, but was limited to “immediate relatives of US Citizens,” who could demonstrate “extreme hardship” to a US Citizen spouse or parent. The 2013 new rule represented a marked change from the previous procedure, which required that an applicant take the risk of applying for an immigrant visa abroad, and submitting the waiver application AFTER the visa was refused under the three and ten year “unlawful presence” bar. This meant that the applicant would be separated from his family for several months assuming the waiver was approved; and for up to ten years if the DHS denied the waiver!
Since 2013, thousands of “immediate relatives” of US citizens have obtained their green cards using the I-601A procedure. Under the 2013 rule, however, only “immediate relatives,” specifically certain parents, spouses and children of U.S. citizens who were in the United States were eligible to seek an I-601A provisional unlawful presence waiver before departing the US to obtain their immigrant visas. The rule left many “out of status” people with approved I-130 and I-140 petitions stuck in the US, not eligible to obtain their green card in the US through the adjustment of status process and not qualified as “immediate relatives” to use the 2013 I-601A process.
Now, the USCIS may grant an I-601A provisional waiver to anyone who is statutorily eligible for an immigrant visa, regardless of visa classification, and for a waiver of inadmissibility based on unlawful presence. To be eligible for this waiver, an Applicant must demonstrate that the denial of the waiver would result in “extreme hardship” to his U.S. citizen OR Green card holding spouse or parent(s).
This means that any immigrant visa applicant, whether through an I-130 family preference petition, I-140 employment petition, Diversity Visa Lottery or special immigrant category, can use the I-601A waiver process to obtain their visa, if they can show “extreme hardship” to a US Citizen or Green Card Holding spouse or parent(s).
Effective August 29, 2016, any person meeting these criteria may be eligible to pursue their green card application through the I-601A process!
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