What is an I-601 Waiver?

The spouses, sons and daughters of U.S. citizens who have accrued more than 180 days of "unlawful presence" in the United States, and have to leave the country as part of the legal immigration process, are barred from returning to their families for as long as 3 or 10 years. But they might be eligible to receive a "waiver" to allow them to return to their families by providing evidence that their U.S. citizen family member would face "extreme hardship" as a result of the separation. The way to get that waiver is to file, with supporting evidence, a Form I-601. 

The current I-601 process

Currently, U.S. citizens who petition for their spouses and children to become legal immigrants to the United States must first petition for a visa, and in some circumstances—if the spouse or child has accrued more than 180 days of unlawful presence in the U.S.—that spouse or child must then also apply for a "waiver of grounds of inadmissibility" (by filing a Form I-601) in order to have his or her visa application processed. Applicants can only file for a waiver after having been determined "inadmissible" by the U.S. consular officer and must wait abroad for a decision. 

I-601 Waivers: The need for an experienced attorney

While you can theoretically file a Form I-601 yourself, the applications for such waivers are extremely complicated and doing them incorrectly could mean family members could face separations for as long as 10 years. Prospective applicants are therefore strongly advised to hire an experienced immigration attorney to help them navigate the tricky and cumbersome waiver application process. 

As a law firm with years of immigration law experience, including the filing of numerous I-601waivers, you can count on Root Law Group to:

- Advise you as to eligibility for a waiver based on extreme hardship

- Prepare and file the Form I-601 waiver application on your behalf

- Gather and organize the evidence needed to support your waiver application

- Deal with the submission of the waiver application to USCIS, the Immigration Court or the applicable U.S. Consulate abroad

- Represent you before USCIS and at Immigration Court hearings

- Help you take advantage of a new proposed change to the waiver rules to keep your family together during the long visa application process 

Under current policy, individuals who wish to apply for a waiver of inadmissibility for unlawful presence must first leave the U.S. and can only apply for a waiver at a U.S. consular office outside the United States. This process can subject U.S. citizens to months of separation from family members who are waiting for their cases to be processed overseas. 

A proposed change to the current process: a "provisional" waiver in the U.S.

In early 2012, U.S. Citizenship and Immigration Services (USCIS) posted a "notice of intent" in the Federal Register outlining a proposed change to the current process.

The only change contemplated by this proposal is that the spouse or child would be able to apply for a waiver with USCIS within the United States and receive a provisional decision on that waiver before departing the U.S. for consular processing of their immigrant visa applications.

NOTE: The USCIS announced on January 2, 2013, that the new "provisional waiver" process will be in effect beginning March 4, 2013.

Who would be eligible for a provisional waiver?

Spouses and children of a U.S. citizen (1) who are seeking lawful permanent residence through an immigrant visa, (2) who are inadmissible based on unlawful presence in the United States for more than 180 days, and (3) who meet the existing extreme hardship standard.

(Some aliens do not accrue unlawful presence if they fall into certain categories. For example, children under the age of 18 do not accrue unlawful presence, nor do victims of crime and aliens with pending asylum applications. Therefore the people in these groups do not need to apply for waivers.)

People who are not eligible for a provisional waiver would continue to follow current agency processes for filing waiver requests after a determination of inadmissibility is made by a U.S. consular officer overseas. 

Purpose of the proposed change: uniting separated families more quickly

There is one purpose behind the proposed change: to limit the lengthy separation of families that can occur in the current immigrant visa process.

The policy objective of this proposed process change is to alleviate extreme hardship suffered by U.S. citizens when their immediate family members are abroad for a long time. The focus on U.S. citizens and their immediate relatives is consistent with Congress’ prioritization in the immigration laws of family unification. The proposed change meets the goals of both improving efficiency and reducing the length of time that American families are unnecessarily separated. 

All that would happen under the proposed change is that the spouse or child of a U.S. Citizen would be able to apply for a waiver with USCIS in the U.S. and receive a provisional decision on that waiver before departing the U.S. for consular processing of their immigrant visa applications abroad.

If the Department of State finds the individual otherwise eligible for the immigrant visa, the consular officer would then issue the visa, allowing the individual to immigrate to the U.S.

How would the new process work?

The immediate relative of a U.S. Citizen (spouse or child) would apply for a visa, and as part of that process would file a Form I-601 waiver. USCIS would grant a provisional waiver before the applicant departs the U.S. for consular processing of their immigrant visa applications. The provisional waiver would not take effect until the individual departs from the United States and triggers the covered ground of inadmissibility.

These provisional waivers would benefit only those individuals who are inadmissible based solely on having accrued a period of unlawful presence and who can demonstrate extreme hardship to their U.S. citizen relative. All individuals affected by this streamlined process would still need to meet all legal requirements for admission to the United States, including the requirement that they process their visa application at a U.S. consulate abroad.

Individuals who are denied waivers under the proposed process would be subject to USCIS guidance and law enforcement priorities for issuing Notices to Appear (NTA). For example, convicted criminals, public safety threats, and those suspected of fraud will receive NTAs. 

What won’t change?

The proposed change would:

Not affect the current requirements for obtaining a visa.

Not affect the current legal standards for obtaining a waiver (i.e., having accrued unlawful presence and proving separation would cause extreme hardship).

Not affect the current requirement that the spouse or child of a U.S. citizen must ultimately depart the United States to have his or her visa application processed at a consulate abroad.

Not cover any grounds of "inadmissibility" other than "unlawful presence." If the consular officer abroad finds that the individual is subject to another ground of inadmissibility during the immigrant visa interview, the individual would need to file another waiver application with USCIS.

Not affect individuals who have already filed a Form I-601 from outside the U.S. before the change is finalized. The change would only affect individuals who have not yet filed a Form I-601 and who will file a waiver request after March 4, 2013.

Contact Root Law Group for a free in-office consultation regarding I-601 waivers.

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