I-601a Expansion Rule Comes Out To Cover All Case Classes With Eligibility To Immigrate Including Family Members And Those With Removal Orders


The long-awaited I-601A provisional waiver expansion rule was published in the Federal Register on July 29, 2016, giving hope to all those with immigration cases who are not eligible to adjust status and who would be barred for 3 or 10 years from returning to the U. S. if they chose consular processing. It is an expansion of the 2013 I-601A rule that allowed advance waivers for being in the U. S. illegally for 180 days (3 year bar) or one year (10 year bar) to immediate relatives of U. S. citizens who had qualifying U. S. citizen parents or spouses who would suffer extreme hardship if the undocumented immigrants left the U. S. permanently. The applicants would still have to go outside the U. S. for consular processing, but the immigrant visa interview would in all likelihood be successful as the waiver would have been adjudicated prior to the applicant’s making a final decision to complete consular processing. The 2013 I-601A rule deviated from the practice at the time under which applicants choosing consular processing could only go outside the United States, be interviewed and denied immigrant visas, instructed that they could file an I-601 waiver only at that time, and upon filing a waiver, stay outside the U. S. awaiting an uncertain processing time and adjudication.

The new rule is important in giving hope to everyone other than immediate relatives of U. S. citizens that they too will be able to successfully finish an immigrant visa case if they qualify in any category. This includes all the family-based cases, employment-based cases, and diversity (visa lottery) cases. For example, persons who sneaked into the country and are sponsored by companies and other organizations may be able to use the I-601A to waive the ground of illegal stay and complete their employment based case. The new rule not only expands the class of applicants eligible for the waiver, but also the list of qualifying family members who would suffer extreme hardship to spouses and parents holding permanent residency. This is best illustrated by 2 examples:

  1. Joseph entered the country without inspection in 2005. He has been a cook ever since. His present employer sponsored him for PERM labor certification in 2011. That was approved in 2012, as was the next step, I-140 Petition for Alien Worker in 2013. Joseph’s mother and father are both U. S. permanent residents, having come to the U. S. in 2015 through the petition of Joseph’s U. S. citizen sister. Prior to the I-601A expansion, Joseph would have had to go outside the U. S. if he wanted to complete his employment-based case and go through the I-601 process. Under the expansion rule, he is now able to file for an advance I-601A waiver based on the extreme hardship to his parents, and if approved, would most likely have a normal successful immigrant visa interview at his home U. S. embassy or consulate.
  2. Mary entered the U. S. without inspection in 2003. Her brother became a U. S. citizen in 2004 and sponsored her under the F-4 category for siblings of U. S. citizens, and their parents as his immediate relatives who entered as permanent residents in 2005. The parents in turn petitioned for Mary as soon as they came in, but their petition was automatically invalidated when she married in 2007 as green card holders can only sponsor unmarried sons or daughters over the age of 21. Her husband is also undocumented. Under the expansion rule, Mary can now file for an I-601A waiver based upon extreme hardship to her parents. Her husband is also eligible, and so assuming that the waivers are approved, both she and her husband can complete her F-4 sibling case by interviewing at the home U. S. embassy or consulate.

While the procedure for dependents was vaguely stated in the rule, it is clear that they are included for I- 601A relief if they “accompany or follow to join” their principal applicants. A new I-601A application form will soon be issued clarifying the process. The new form will have questions about derivative spouses or children and the regulation states that such individuals must include evidence of their eligibility as a derivative beneficiary of the principal’s approved immigrant visa petition or of his or her selection in the diversity visa program.

The new rule does not expand the grounds of ineligibility that are currently covered by the I-601A waiver, which only waives unlawful presence in the U. S. Those with disqualifying crimes, fraud, misrepresentation, and other ineligibilities will not benefit.

It does, however, afford an avenue of relief to those who have final orders of exclusion, deportation, or removal. In the administration of the I-601A program thus far, the Department of Homeland Security (DHS) has made clear that those with final orders will not be able to have them reopened for purposes of applying for I-601A waivers. Persons with active cases in immigration proceedings are allowed to request the court for administrative closure to permit the filing of an I-601A waiver, and that procedure still continues under the new rule. However, the new rule allows individuals with final orders to file for an I-212 Application for Permission to Reapply for Admission into the U. S. after Deportation or Removal, and if that is approved, file for an I-601A waiver. If the I-601A waiver is also approved, the applicant would in all likelihood have a successful immigrant visa interview overseas. Those who have had their final orders reinstated by DHS prior to the filing of or during the pendency of the I-212 waiver are not eligible, and those who were removed or had prior unlawful presence and came back unlawfully can have the I-601A automatically revoked if they are determined to be inadmissible under the permanent bar of INA §212(a)(9)(C). This can be best illustrated by Example #1 of Joseph, the employment-based applicant by adding the fact that during his illegal work, he was picked up by ICE in 2013 and ordered removed by an immigration judge in 2015, an order he did not appeal. Now he is eligible to file for an I-212 waiver while in the U. S., and upon approval, file for an I-601A waiver, and if both are approved, the issues of his prior removal and unlawful stay in the country would not be counted against him in a consular interview.

Other pertinent changes from the 2013 rule are that DHS is removing its previous insistence that it can deny an I-601A waiver simply because it has “reason to believe” that the applicant may be subject to other grounds of ineligibility at the time of the immigrant visa interview, and removing the requirement that applicants cannot have scheduled their immigrant visa interviews prior to January 3, 2013. The former reason for denying was seen as unfair by many critics who pointed out that the “reason to believe” was too subjective and that U.S.C.I.S. often applied the standard too rigidly by denying applications under suspicion rather than adjudicating the relevant inadmissibility concerns consistent with applicable law. DHS agreed in the final rule to remove the standard as it is the Department of State that generally determines admissibility at the interview and Customs and Border Protection that ultimately determines admissibility at the port of entry, and that any assessment by U.S.C.I.S. with respect to other grounds of inadmissibility would be at best advisory and would likely cause even greater confusion for applicants.

The final rule is effective on August 29, 2016, and U.S.C.I.S. (which administers the program) announced that the new form would be posted on U.S.C.I.S.’s website at uscis.gov/i-601a on the same day – also that applicants should not submit a request under the expanded guidelines until August 29, 2016. On that date or thereafter, those who have approved immigrant visa petitions and paid the immigrant visa processing fee to the Department of State or have been selected for the visa lottery can begin submitting I-601A applications.

Although the estimated number of applicants based upon current visa quota limitations is approximately 100,000 over 10 years, the expanded program is extremely important in giving a light at the end of the tunnel for the many undocumented immigrants who see none at the present time, and are increasingly lured into taking unwarranted immigration risks by lawyers and non-lawyers alike. The options offered by these individuals are often very low percentage plays and leave the undocumented immigrants in worse positions both legally and financially than they were before. The history of the I-601A program offers the startling contrast of positive results which were again framed in the final rule that from FY 2013 – FY 2015, 66,290 were approved and 26,745 denied (71.25% approval rate), and for FY 2015 alone, 34,310 were approved and 13,069 denied (72.4% approval rate).

The new rule successfully straddles the concerns of those hoping for humanitarian solutions to the broken immigration system in the U. S. and those concerned with the potential overreach of executive authority. The gesture towards those who have been ordered removed by allowing for the filing of an I-212 while in the U. S. is already authorized under current immigration law in other situations. Altogether the rule is a positive affirmation of the President’s willingness to offer solutions for the many undocumented immigrants in this country, and will surely be continued under a Hillary Clinton Administration.

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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