I - 601A - A Viable Choice For Many

by Alan Lee, Esq.

With all the attention being paid to S.744, the comprehensive immigration package being debated on the floor of the Senate and a possible package coming from a bipartisan group in the House, little focus is being accorded the I - 601A provisional waiver as the pathway to immigration. As readers may recall, this provision, which is already in the law by regulation, allows immediate relatives of U. S. citizens who are not eligible for adjustment of status because of their mode of entry into the U. S. (most having entered without inspection) to file for a waiver of their illegal stay while in the U. S. and, if approved, to go overseas for an immigrant visa interview which would in all likelihood be quite normal. (A waiver is required as most individuals who have been in the U. S. illegally for 180 days or one year are barred from entry for 3 and 10 years respectively). Without the I - 601A, the normal practice for an immigrant visa applicant violating the illegal presence statute and wishing to consular process would be for the applicant to be refused at an immigrant visa interview, and then be instructed to file a waiver application under form I-601 while outside the U. S., where he or she would have to remain until the waiver could hopefully be granted. If the waiver was denied, the applicant would be stuck outside the U. S. until such time that an appeal or another waiver application could be approved, or the time bar expire. The advantages of the I - 601A over the current legislative thrusts are that it is already law and successful applicants can expect to receive their permanent resident green cards within 1- 2 years as opposed to the 10 years contemplated in S .744.

A glimpse of early processing was provided in the I - 601A Stakeholder Teleconference on May 10, 2013, with members of U.S.C.I.S. and the Department of State. U.S.C.I.S. implemented the process on March 4, 2013, and as of the date of teleconference had received approximately 4400 waiver applications and had issued "some" decisions. It had seen a higher than anticipated rejection rate (not denials) due to filing errors, which it attributed to such items as no evidence that the Department of State filing fee had been paid and to incorrect mailing addresses. Both agencies anticipated a dual process in which I - 601 waiver adjudication and consular processing would go on simultaneously. To those fearful of what would happen to them if the I - 601A adjudication was unsuccessful, U.S.C.I.S. affirmed that it would only issue NTA's (Notices to Appear) to the immigration court according to its NTA policy. (Current NTA policy as of November 7, 2011 is to only issue in certain types of cases, and most of the reasons would not be present in the typical I - 601A case. Even in cases involving fraud, the agency is not required to, but will issue with the statement of findings (SOF) substantiating fraud, and criminal cases are referred to ICE for a decision on NTA issuance). U.S.C.I.S. affirmed that where crimes were concerned, it would not be doing a full admissibility assessment; could not say how broadly it would look at security and background checks; and that the Department of State would ultimately decide the question of crime and inadmissibility. A large question was asked as to why the form required the applicant to write about the extreme hardship that the qualifying U. S. citizen would suffer and that the qualifying member was perhaps the best party to write on the hardship. U.S.C.I.S. said that it would take all evidence into consideration (which would presumably include a statement from the qualifying family member).

Potential applicants should assess their eligibility before deciding to apply in that the provisional waiver when granted only forgives the ground of illegal stay in this country. It will not forgive other grounds, such as fraud, misrepresentation, national security threats, crimes that would make entrants inadmissible, etc. They must be immediate relatives of U. S. citizens, which is defined as parents, spouses, and children under the age of 21 and unmarried (for I - 601A purposes, children must be 17 years of age or older). The qualifying family member who will suffer extreme hardship must be a USC spouse or parent, e.g., if the parent of a U. S. citizen is being sponsored by his or her son/daughter, the parent must in turn either have a USC spouse or parent who would suffer extreme hardship.

Although much is being made of the ongoing legislative process for comprehensive immigration reform, the I - 601A waiver should be given due consideration as a present and viable route to immigration within a fairly short period of time.

This article © 2013 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, on the New York Super Lawyers list (2011-12), and recognized as a New York Area Top Rated Lawyer in 2012. 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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