I-601A Provisional Waiver Regulation Published January 3, 2013, With Effective Date March 4, 2013

Alan Lee, Esq.

The long-awaited I-601A provisional waiver is finally here. DHS Secretary Janet Napolitano announced the final rule on January 2, 2013, that the process would be effective on March 4, 2013. Looking at a prepublication copy of the final rule, the regulation will mirror the proposed rule of April 2, 2012, with exceptions. The basic structure remains that it will be available for immediate relatives of U. S. citizens (parents, spouses, and children under the age of 21 and unmarried) who are unable to adjust status in the U. S., and will now be allowed to file I- 601A provisional waiver requests of the bars caused by their illegal stay so long as they can show that a denial would cause extreme hardship to their U. S. citizen parent or spouse. Passage of the rule does not allow individuals to adjust status to permanent residence in the States, but to file a waiver while in the States and have it adjudicated before making a decision to leave the U. S. to attend an immigrant visa interview at an American consulate or embassy. If the waiver is approved, an immigrant visa interview would in all likelihood be routine. This is in contrast to present procedure under which an immigrant visa seeker requiring a waiver for illegal stay would have to first be denied at the interview, instructed to file a waiver, and then have to wait outside the U. S. in hopes that a waiver application would be favorably adjudicated.

The rule only covers those with no other problems than inability to adjust status in the States, does not apply to those with removal orders, or to those who have already been scheduled for immigrant visa interview prior to the rule publication date of January 3, 2013. It provides exceptions to allow persons in removal proceedings whose cases have been administratively closed or benefited Under Deferred Action For Childhood Arrivals (DACA) to apply for the provisional waiver, but that once approved, they must obtain termination or dismissal of their cases by the immigration court before traveling overseas. The rule does not expand the program to include persons in other preference categories or qualifying family members who can show extreme hardship, but DHS signaled that it was open to later expansion of the program to perhaps include others as applicants or qualifying relatives. The rule does allow more than one I-601A filing if the first is rejected and that those ineligible because of immigrant visa interview scheduling before publication of the rule can have their immigrant visa registration terminated and a new immediate relative petition filed or have a new immediate relative petition filed by a different petitioner.

This article © 2012 Alan Lee, Esq.

About The Author

Alan Lee, Esq. is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Director, registered in the Bar Register of Preeminent Lawyers, and on the New York Super Lawyers list. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. 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, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

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