News Update - October 15, 2012

What Happened With the I-601A Waiver?

With the large amount of attention on election-year immigration politics and the June 15, 2012, implementation of deferred action for childhood arrivals (DACA), the other important pro-immigration initiative of the Obama administration, the provisional waiver of inadmissibility for certain immediate relatives of U.S. citizens (a.k.a. the I-601A waiver) appears to have become lost in the woodwork.  The initiative was first broached by U.S.C.I.S. in its June 6, 2011, Rome meeting by its International Operations Division, followed by a notice of intent on January 6, 2012, to publish a rule allowing immediate relatives of U.S. citizens who are eligible for immigration other than having entered the U.S. without inspection to file a waiver of inadmissibility in the U.S. and have it adjudicated in the States prior to having to make the decision of whether to leave the U.S. to consular process their approved petitions; and further moved along by notice of proposed rulemaking on March 30, 2012.  Since then, almost no news.

Under present rules, immediate relatives of U.S. citizens who entered illegally are not eligible for adjustment of status to permanent residence in the U.S. unless they are the beneficiaries of INA Section 245(i) which allows most individuals to adjust status upon the payment of a fine amount of $1,000 if they had immigrant visa petitions or labor certification applications filed on their behalf by April 30, 2001, and were physically present in the States on December 21, 2000.  An earlier version of Section 245(i) allows adjustment of status without the physical presence requirement if the labor certification application or immigrant visa petition was filed by January 14, 1998.  Persons who have been in the U.S. for 180 days or 1 year incur bars on return of 3 years and 10 years respectively.  If they have I-130 immigrant petitions approved, are not eligible for adjustment of status under Section 245(i), and choose to consular process their immigrant visas overseas, they would first be denied at interview, informed that they are excludable from the States, and informed that they can file for a waiver of the 3/10 year bars through form I-601 by proving extreme hardship to the U.S. citizen qualifying member if the applicant cannot return the the States.  The Obama Administration's initiative would allow the applicant to see the results of the waiver application before making the decision to leave the U.S. for a consular interview.  The waiver application would be made on Form
I-601A  Application for Provisional Unlawful Presence Waiver, and if approved, would allow most immigrant visa interviews to be routine and uneventful. 

What makes the proposed rule so significant is that the initiative does not require congressional passage of legislation.  Without need for legislative action, it will go into effect as soon as the U.S.C.I.S. completes the regular process of promulgating a regulation.  If it required legislative approval, there would be no level of excitement as Congress has shown no ability to do the people's work in passing bills.

The proposed rule is also important for the possible number of persons benefited.  Although U.S.C.I.S. could not provide concrete numbers, it did estimate in the proposed rule that over 10 years, a baseline estimate of possible applicants was 219,549, and dependent upon increased demand percentage, could rise anywhere from 274,436 to 417,143. 

This writer broached the subject with U.S.C.I.S. in its October 10, 2012, Quarterly National Stakeholder Engagement by asking whether the regulation was at the Office of Management and Budget (OMB) or whether it was back with U.S.C.I.S. The U.S.C.I.S. representative did not have an answer except to say that the agency was going over the comments that it had received on the rule.  The writer further pressed the representative by reminding her that U.S.C.I.S. had said that the rule would come out by the end of the calendar year, to which she said (to the writer's best recollection) that he could put the question in writing, and that she did not have specific knowledge of the stage that the rule was at. 

Generally speaking, a proposed rule after publication generates public comment which is reviewed by the agency which then prepares the interim or final rule.  It is then sent for OMB review following which the rule can take effect by publication of the interim or final rule after proper notice to Congress and the General Accounting Office. 

Following the stakeholder meeting, we attempted to follow up with the U.S.C.I.S.'s Central Office receiving standard warning from a representative that the I-601A rule had not yet been approved and anyone filing under the I-601A would be rejected.  Also that the system did not show what stage the proposed rule making was at.  We then spoke with the U.S.C.I.S. Ombudsman's office where the representative said that the Ombudsman did not have information on whether the rule had been transferred to OMB, but that U.S.C.I.S. would post the Q&As from the October 10, 2012, stakeholders meeting soon and it would have information on the I-601A.  (That might of course not prove very interesting as it would likely only have the writer's question and CIS's noncommital answer).  We finally spoke with U.S.C.I.S.'s Office of Policy and Strategy where the representative said that there was supposed to be a possible announcement on the I-601A rule at the Intergovernmental Affairs Quarterly Stakeholder Teleconference on October 26, 2012. 

So it would appear that barring unexpected news, the next chance that we will have to hear anything substantial on the I-601A rule will be October 26th.  At that time, we and almost everyone else who is favorably interested in the proposed rule would like to hear that it is moving strongly forward, that much progress is being made, and that the agency will meet its goal of publishing the regulation by the end of the calendar year if not sooner.

† The author is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory, registered in the Bar Register of Preeminent Lawyers, and on the New York Super Lawyers list for 2011-2012. 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.

‡ This article © 2012 Alan Lee, Esq.

Copyright © 2003-2012 Alan Lee, Esq.
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