WHO CAN BENEFIT FROM THIS NEWLY MINTED REGULATION
What a blessing to have received two pieces of good news related to
immigration within a span of one year. Since August 15, 2012, when DACA
– Deferred Action for Childhood Arrivals – took effect, thousands of
hopeful youngsters have received their employment authorization
documents and social security numbers. They are now gainfully employed,
contributing ot he family coffers or saving up for college. By March 4,
2013, the new provisional unlawful presence waiver, alternatively
referred to as 601A waiver, will take effect. On the state level, there
is also good news because immigrants without status will eventually
become eligible to apply for driver’s licenses under the temporary
visitor driver’s license (TVDL) program. The program will take effect
ten months after Governor Quinn signs the approved bill into law.
Who can avail of the 601A Unlawful Presence Provisional Waiver?
A
limited set of individuals will benefit from this recent announcement.
Only individuals who are immediate relatives of U.S. citizens, who are
physically present in the U.S. but cannot adjust status here, despite
being married to U.S. citizens, with U.S. citizen children and having
lived here for a long time, may avail of this unlawful presence
provisional waiver.
“Immediate Relative” is defined as the (i)
spouse of a U.S. citizen; (ii) parent of a U.S. citizen who is at least
21 years of age; (iii) child below 21 of a U.S. citizen parent.
Examples of those may benefit from this waiver include: spouses, parents
and children of U.S. citizens who crossed the border or jumped ship or
entered without inspection by an immigration officer.
How does the 601A waiver work?
This
new process applies only to immediate relatives of U.S. citizens who
have no violation other than being unlawfully present in the U.S. This
new process will not apply if there are other issues such as entering
with a false passport or name, previous removal/deportation, criminal
conviction, engaging in any form of fraud or misrepresentation, or
unauthorized claim of U.S. citizenship.
A very important
requirement for a successful waiver application is a showing of extreme
hardship on the part of a qualifying relative – a U.S. citizen spouse or
parent. There is no clear definition of extreme hardship and it can
only be inferred from successful case law. This emphasizes the
importance of seeking legal counsel who can thoroughly assess a specific
situation and help the applicant evaluate whether it is wise to apply
for this waiver.
By March 4, 2013, and only after the approval
of an immediate relative immigrant petition or a self-petition,
applicants may file the 601A waiver at a designated lockbox within the
United States. This new procedure alleviates the anxiety among family
members because they can continue to be together during the waiver
application process. In order to perfect the waiver process, the
applicant must still leave the U.S. and have the immigrant visa
interview at a U.S. consulate abroad. Approval of the unlawful presence
waiver does not a guarantee issuance of the immigrant visa but as long
as there is no issue other than unlawful presence, the applicant can
expect to rejoin his or her family in the U.S. immediately after visa
issuance. If, at the interview process, other undisclosed or not
immediately discoverable issues surface, the applicant will be required
to go through the regular 601 waiver process described below.
The
existing 601 waiver procedure still applies to those who cannot avail
of the 601A waiver. This existing process requires the applicant to go
for the immigrant visa interview first before being allowed to file the
601 waiver, consequently causing months, if not more than a year, of
waiting for the outcome of the waiver application. In an effort to
streamline the waiver process, all waiver applications – the new 601A or
the existing 601 process – are now filed in designated locations.
Hopefully, this will make the adjudication process consistent compared
to the past when waiver applications were adjudicated at the various
consulates around the world.
Applicants scheduled by the NVC ON or AFTER January 3, 2013 for an upcoming interview are eligible to apply for a 601A waiver.
Who qualifies for a 601A Unlawful Presence Provisional Waiver?
An individual qualifies for this waiver if ALL of the six requirements below can be met:
- The applicant is at least 17 years of age;
- The applicant is physically present in the United States;
- The applicant has accrued unlawful presence in the U.S. for a
period greater than 180 days or the applicant entered the U.S. without
inspction
- An immediate relative immigrant petition on behalf of the applicant has been approved;
- The immigrant visa processing fee has been paid;
- Extreme hardship will be caused upon qualifying relatives
(U.S. citizen spouse or parent) if the waiver is not granted an
immigrant visa
Who are ineligible to apply for a 601A Waiver?
- Anyone who does meet any one of the qualifying factors above will be ineligible to apply for a 601A waiver.
- The applicant has a pending application for adjustment of status.
- Applicants with notices of visa interview prior to January 3, 2013
Example 1 – Spouses and Children of U.S. Citizens who Entered Without inspection (EWI)
In 2005, Alex traveled to Canada. Although Alex did not have a U.S.
visa, he was able to enter by land. He fell in love with Cathy and got
married three years later. They have two U.S. citizen children. Cathy
filed an immigrant petition for Alex as soon as they got married but
because he was not inspected by an immigration officer when he entered
the U.S., he could not proceed with his immigrant visa process within
the U.S. He needed to leave and process his immigrant visa abroad.
However, the length of his unauthorized stay in the U.S. would have
prevented him from returning for at least 10 years. For Alex and Cathy,
leaving to pursue the visa application abroad was an impossible
solution in light of the fact that Cathy needed to work and no one would
be available to take care of their two young U.S. citizen children.
Alex’s lengthy absence would subject Cathy to extreme hardship.
Pursuant
to a 601A waiver application, Alex can file an application for
provisional waiver in the U.S. after Cathy’s immigrant petition has been
approved and the requisite visa fee paid. The waiver application must
prove that Cathy (Alex’ qualifying relative) will suffer extreme
hardship if the waiver is not granted. He can wait for the outcome of
the application in the U.S., thus, enabling him to spend more time with
his family. Once the waiver is approved, he can travel to a consulate
abroad to continue the immigrant visa process and reenter the U.S. as a
lawful permanent resident once he receives an immigrant visa.
Example 2 – Crewmembers (C1 and D1 Visa Holders) who Married a U.S. Citizens
Cesar,
a widower, had a low-paying job in a cruise ship. While the ship was
docked in Florida in 2002, he learned about opportunities for a higher
income in the U.S. This was very enticing to him because he wanted his
children to go to school and eventually earn their professional
degrees. One of the children, Dan, was focused on becoming a licensed
physical therapist in the U.S. Dan succeeded in becoming a green card
holder through employment-based immigration. Dan, who is now a U.S.
citizen, could have easily petitioned for his father Cesar but having
“jumped ship”, he was unable to apply for adjustment of status in the
U.S. His situation is similar to someone who entered without inspection.
Cesar eventually met Liza, a U.S. citizen widow and a strong
cancer survivor. Cesar and Liza gave each other hope, treasured being
together and decided to get married. They longed to travel to places
around the world but Cesar had to work out his immigration status.
Cesar would need to apply for a waiver and the new provisional waiver
would allow him to await its approval in the U.S. This would enable
Cesar and Liza to spend more time together, before Cesar proceeds abroad
to continue his application for the issuance of his immigrant visa.
Example 3 – Children Who Crossed the Border at a Tender Age
There
are thousands of infants and unsuspecting children who were brought to
the U.S. through the borders by their relatives. Many of these children
cannot proceed to college because they cannot avail of student loans
for lack of social security numbers.
Miguel, an agricultural
worker, gained residency through employment. This process took so
long. He finally received his green card and was reunited with his
childhood sweetheart, Celina. They got married and were blessed with a
child, Mario. As a green card holder, Miguel was capable of filing a
petition for his family but, back then, it would have taken at least 5
years for his wife and child to immigrate. The family could not bear
being separated much longer. Celina and Mario were denied visitor’s
visas many times so Miguel’s wife, Celina, and their 3-year old son
risked it and crossed the border.
Life got in the way and it
took some time for Miguel to become a U.S. citizen. He can now file an
immigrant petition on behalf of Celina and Mario (who is now 18) but
because they entered without inspection, they would need to exit in
order to apply for their immigrant visas at the U.S. Consulate back
home. The recently announced provisional waiver enables them to file
their applications for provisional waiver in the U.S. prior to attending
the visa interview at the U.S. consulate abroad. Once the visas are
issued, they can return as permanent residents.
No Appeal, Motion to Reconsider or Motion to Reopen
The
waiver application process is complex. While it may sound
self-serving, I strongly advise seeking legal counsel before filing an
application for provisional waiver. It is also important to note that
grating of a waiver is discretionary and there is no appeal or motion to
reconsider or motion to reopen if the application is denied.
