Proposed I-601A Expansion Rule Exciting in Giving Right to Apply to All Family and Employment-based Petition Applicants, Visa Lottery Winners, and Certain Special Immigrants!


In our article last week, “Status of expanding I-601A provisional waiver to other classes,” I gave a short update on the present progress of the proposed rule, noted that one should not be expected to hold one’s breath with the speed that we have seen the agency take in the promulgation of regulations, and hoped that the expansion regulation would be given priority in the Administration’s agenda. Happily today the Department of Homeland Security (DHS) sent out advance copies of the proposed rule, “Expansion of Provisional Unlawful Presence Waivers of Inadmissibility” which is exciting and will be published in the Federal Register momentarily. A 60 day comment period will follow after which the Administration will hopefully push hard for a quick final rule.

Unlike the expanded DACA and DAPA programs that were announced in the President’s Executive Actions of November 20, 2014, the I-601A program expansion has not been challenged in the courts and is not expected to be the subject of litigation. DHS through the use of Department of State inadmissibility statistics and historical provisional waiver data estimates that the expansion over a ten-year period will only involve approximately 112,103 individuals with the top annual number being 12,496 in year 10 of the program.

The proposed rule calls for an expansion of the program in 2 ways – the classes of eligible aliens will be increased from immediate relatives of U. S. citizens to family sponsored immigrants, employment-based immigrants, diversity visa applicants and certain special immigrants, and the class of qualifying relatives who must be shown to suffer extreme hardship in order for the I-601A to be approved is to be expanded from U. S. citizen spouses and parents to lawful permanent resident spouses and parents. In this scenario, for example, an individual who entered the U. S. without inspection, has labor certification application and I-140 immigrant petition for alien worker approved, and has a permanent resident parent, could possibly apply for the I-601A provisional waiver. Diversity visa (DV) lottery selectees are also included although there are special considerations associated with no fee bills from a DV selection and that the processing must be completed before September 30th of the year in which the lottery winner is eligible.

Because of the program expansion to the preference classes which have dependent family members as opposed to the present program only involving immediate relatives with no dependents, DHS answered the question of what would happen to dependents who wish to obtain green cards also but who have been in the country and fall under the 3 or 10 year bars for being here illegally for 180 days or one year respectively. In a footnote, the agency said that “Although derivative spouses and children apply for an immigrant visa based on their relationship to a principal beneficiary, the admissibility determination is made individually for each immigrant visa applicant… If the derivative is inadmissible, he or she must apply for a provisional waiver and meet the eligibility requirements independent of the principal.” It should be noted, however, that the 3 and 10 year bars do not apply to a child under the age of 18, and so such a child could immigrate with the principal without a waiver so long as the child left the U. S. before the age of 18.

DHS also released as table 2 “Historical Numbers of I-601A Receipts, Approvals, and Denials” from the beginning of the program through January 2015 showing that the approval rate of final adjudications was 70.2%, an encouraging figure although less of an approval rate than with regular I-601 waiver applications.

Basic eligibility requirements for aliens who could not qualify under the I-601A program until the expansion are that, in most cases except for diversity applicants, there must be an approved U.S.C.I.S. petition and case pending with the Department of State; that the applicant cannot have an immigrant visa interview scheduled by the Department of State prior to the final rule being published; the alien cannot be inadmissible except for illegal stay in the U. S.; cannot have a pending I-485 application to register permanent residence or adjust status with U.S.C.I.S.; cannot be in removal proceedings unless the removal proceedings have been administratively closed and not re-calendared as of the date of filing the I-601A application; cannot have been ordered removed, excluded, or deported from the United States; and cannot be subject to reinstatement of a prior removal order.

The publication of the proposed rule and its substance are cause for excitement, and it is our fervent hope that the proposed rule does not get sidetracked or otherwise delayed in becoming a final rule.

This article © 2015 Alan Lee, Esq. Reprinted with permission.

About The Author

Alan Lee, Esq. Alan Lee 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, 2013-14, 2014-2015), and recognized as a New York Area Top Rated Lawyer. 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, Muhasba 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; his 2004 case in the Second Circuit Court of Appeals, 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); and his 2015 case, Matter of Leacheng International, Inc., with the AAO set nation-wide standards on the definition of 揹oing business?for multinational executives and managers to gain immigration benefits.

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