Published: January 3, 2013
On March 30, 2012, US Department of Homeland Security/Citizenship and Immigration Services first announced its plan to implement a “stateside” I-601 Waiver program, an initiative for processing a “waiver of inadmissibility” for certain applicants for permanent residence who under current law, are ineligible to undergo final green card processing in the U.S. Under the current system such individuals must leave the US for an extended period for their final green card/ interview, and appear before a US consular officer in their home country. With the new stateside waiver program, however, instead of facing a 3 month or so wait to receive a decision on their waiver application while outside the US, applicants will only need to wait as little as a few days or week outside the US, since the 3 months of processing will now take place before the applicant’s departure. With the most recent announcement, this program is set to take effect starting March 4, 2013.
Who benefits from this new program? With some exceptions, the vast majority of applicants are spouses of U.S. citizens who have been present unlawfully in the U.S. for an extended period after previously entering the U.S. without being inspected/without a visa. Unless they are covered under INA Section 245(i) (another discussion), these applicants are unable to “adjust” their status and undergo all immigrant processing in the U.S. This class of applicants is to be distinguished from those who merely overstayed their nonimmigrant visas (excluding crewman and K-1 entrants), and who continue to be eligible to adjust status in the U.S. if they marry a U.S. citizen, notwithstanding their having overstayed their visa status or engaged in unauthorized employment.
What exactly is being processed “stateside” vs. at a U.S. consular post outside the U.S.? It’s an I-601 Waiver Application to excuse an applicant’s period of 6+ months of unlawful presence in the U.S., and the consequent 3 or 10 year bars to reentering the U.S. An I-601 application is approved only if the applicant can demonstrate that his denied reentry will pose extreme and unusual hardship for his U.S. citizen or permanent resident spouse or parent. Of course, there’s no guarantee all applicants for a waiver will be approved under the program, but this new procedure will no doubt be of great comfort to families by letting them know ahead of time if the main obstacle (3 or 10 year bar) to their loved one’s reentry has been removed – and repeat, before the applicant leaves the US for their interview in their home country. Thus, if the applicant’s waiver application is denied, that decision will be known before any trip outside the US takes place. The applicant will then know there truly is no reason for the applicant to appear for their interview before a US consular officer in their home country, since he will know he will indeed be subject to a bar to reentry that has NOT been waived or excused.
What is the first step for those benefitting from this new program? An I-130 visa petition on behalf of the foreign national in question must be filed and US DHS/CIS must approve the petition, a process that takes anywhere from 3 to 6 months. And such a petition can be filed immediately, and with no need to wait for March 4, 2013 to submit the petition. As stated, it’s mainly spouses of U.S. citizens that will be benefitting from the program although other classes of family based immigrants may also be helped by the program. But for spouses of U.S. citizens, an immigrant visa becomes immediately available upon the approval of the petition, and the foreign national’s immigrant visa is immediately ripe for processing. Within weeks after the I-130 petition is approved by US DHS/CIS, processing shifts to the U.S. Department of State’s National Visa Center and the parties are contacted to facilitate immigrant processing, and under the new program, the processing of the stateside waiver application.
Must the applicant appear for an interview on the waiver? No. Applicants will be directed to file their I-601 application and supporting documentation with DHS/CIS by mail. As of this writing, DHS/CIS’ California Service Center will be making a decision on the application based on the documentation presented, and without conducting a face to face interview. Such a protocol makes the preparation of a thorough and well documented waiver application all the more important, since its only by way of documents that applicants get a shot of being approved.
More information about the program can be obtained by way of the US DHS/CIS website: www.uscis.gov
In any case, before proceeding with such a filing, it is highly advisable for prospective applicants to first consult with a knowledgeable and trustworthy immigration attorney to confirm eligibility and provide a frank assessment of the risks at play and prospects for success.
PUBLISHED January 3, 2013 – “IMMIGRATION LAW FORUM” Copyright © 2013, By Law Offices of Richard Hanus, Chicago, Illinois