I- 601A Expansion Rule Forms and Instructions Provide No Surprises - Dependents Need Own Qualifying USC or LPR Spouse or Parent to File Waiver

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U.S.C.I.S.'s release on August 29, 2016 of the new I-601A form and instructions to include the expanded waiver relief to all classes of eligible immigrant visa applicants with qualifying family members to whom extreme hardship would flow if the waiver was denied did not provide anything new. (For background, see our article, "I-601A Expansion Rule Comes out to Cover All Case Classes with Eligibility To Immigrate Including Family Members and Those with Removal Orders", Immigration Daily 8/1/16). To those who had been hoping for more assistance to dependent family members in light of the words contained in the final rule of July 29, 2016, which made clear that dependents were to be included for I-601A relief if they accompanied or followed to join their principal applicants, the form and instructions merely clarified the present law of waivers relating to dependents - that they themselves must have a qualifying U. S. citizen or lawful permanent resident spouse or parent for hardship purposes.

Presently and as far back as one can remember, an applicant with dependent family members and a parent as the qualifying U. S. citizen or permanent resident who wished to consular process outside the U. S. and required a waiver would have to first obtain the immigrant visa, and return to the U. S. to obtain permanent residence before the dependent family members could then begin the process for consular processing and waiver application. That apparently will still be the process for dependent family members under the I-601A expanded program unless the qualifying family member is the spouse/mother with direct relationship to the dependent. Because of the vague wording of the final rule and its emphasis on the new form that would be appearing with questions about derivative spouses or children and the regulatory language that they would have to include evidence of their eligibility as a derivative beneficiary of the principal's approved immigrant visa petition or of selection in the diversity visa program, some hoped that the new form and instructions would allow dependent family members to either use the principal applicant's waiver as their own or somehow otherwise truncate the waiver process.

In the new form (7/29/16 edition), dependent family members are addressed in Part 3, subpart 3, which requests the principal applicant's U.S.C.I.S. receipt number (3.a) and DOS consular case number (NVC case number) (3.b), petitioner's name if family member or company (3.c - 3.f), and then asks in Part 4 about the individual's qualifying U. S. citizen or lawful permanent resident spouse or parent.

Because dependent family members will generally not be traveling with the principal applicant for the immigrant visa interview unless the qualifying USC/LPR family member is directly related to them, and can only start the I-601A process when the principal applicant returns and is given a stamp denoting permanent residence at the port of entry, there will be a hiatus of time before the dependent family member is able to file a new I-601A focusing on extreme hardship to the principal applicant (now lawful permanent resident) and also considerable U.S.C.I.S. processing time before the dependent's case can enter consular processing. In the past, there have been problems of coordination between U.S.C.I.S. and the Department of State insofar as responsibility in follow to join cases. (In dependent cases, the dependents are following to join the principal applicant and using the principal's priority date and preference classification to immigrate). U.S.C.I.S. no longer has a form under which persons who immigrate from overseas can notify the Department of State that they have immigrated and that their dependents wish to follow to join. The responsibility for such cases now rests with the Department of State although who to communicate with - NVC or the consular post - is puzzling as each sometimes says that the other is responsible. Because of the expected larger flow of follow to join cases occasioned by the new I- 601A expansion rule, this writer hopes that U.S.C.I.S. and the Department of State reach a clear understanding as to how dependents are to begin their own consular processing following the approval of their I-601A waivers.

As a final note, we foresee many situations in the future in which principal applicants in cases allowing dependents will be traveling overseas with their children under the age of 18 who do not require a waiver, but not with undocumented or overstayed spouses and children 18 and older lacking a direct relationship with the qualifying family member for hardship purposes. Requiring split processing only promotes larger backlogs of work for U.S.C.I.S. and the filling of coffers of foreign airlines and hotels, a drain albeit small, on the U. S. economy. Any improvement of the rule in the forms or instructions to better cover dependents would be welcome.

This article © 2016 Alan Lee, Esq. Reprinted with permission.


About The Author

Alan Lee, Esq. Alan Lee, Esq. the author is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.


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