U.S.C.I.S. Issues Notice of Intent to Issue Rule to Allow EWI Immediate Relatives of U.S. Citizens to File and Have I-601 Waiver Applications Adjudicated in U.S. Before They Decide to Interview Overseas for Immigration.

By Alan Lee, Esq.

U.S.C.I.S. posted a notice of intent in the Federal Register of 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 an I-601 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. An approved waiver would be deemed provisional and conditioned upon the individuals actually leaving the U.S.

The notice of intent is good news as it would allow a large number of otherwise qualified immediate relatives (parents, spouses, or children under the age of 21 and unmarried) of U.S. citizens to complete their immigration process in a relatively safe manner. Presently most in this class are fearful of leaving the States to pursue immigrant visa processing at the American consulates or embassies as they must first be denied at interview and can only then file a waiver application which may or may not be approved.

The idea has been bandied about at U.S.C.I.S. for some time, being addressed by its International Operations Division, Office of Policy and Strategy, in a meeting in Rome on June 6, 2011 (See our article, "Motions to Reopen Requiring Exercise of Prosecutorial Discretion  - Should They be Treated More Kindly under Administration's New Policy? Filing I-130 Petitions Overseas with U.S.C.I.S. Now; Entry Without Inspection (EWI) with Inability to Immigrate may have Solution" Immigration Daily, September 12, 2011), and the agency's own Ombudsman in his December 8, 2011, status report (See our article, "Some Bad Immigration Lawyering in New York City; Status of Filing I-601 Waiver Applications before Leaving States for Consular Interviews, H.R. 3012 (China/India More Employment Visas Bill), SB1070 and HB56 (Arizona and Alabama Restrictive Immigration Laws)", 12/20/11).

Under the notice of intent, eligible applicants would be only those who are immediate relatives of U.S. citizens (does not apply to other classes including those related to permanent residents); have an approved petition by the U.S. citizen; and are filing a waiver application based on extreme hardship to a U.S. citizen spouse or parent.  The extreme hardship can be based on a U.S. citizen spouse or parent who is not the petitioner of the approved petition.  Applicants who are not eligible under the notice of intent would have to file I-601 waiver applications in the current manner if interviewing overseas - which means after denial of the visa interview.

U.S.C.I.S. has also made clear that the notice of intent does not apply to applicants who have other grounds of inadmissibility other than being illegal in the U.S.  Applicants requiring a waiver for fraud, willful misrepresentation, crimes, or other grounds would have to apply in the current manner.

This is clearly half a loaf, and does not cover many classes of individuals who could otherwise immigrate to the U.S. if assured that they would be treated like other immigrant visa seekers once they left the U.S. like those granted provisional waivers. One can only hope that the agency will expand the classes eligible for relief either in a final rule or at some later stage. It should be noted that the chief concern expressed by U.S.C.I.S. in the meeting in Rome  - the amount of money going unnecessarily from U.S.C.I.S. to the Department of State for providing services in connection with waivers receipted by the consulates and embassies  - is not resolved by its half a loaf strategy. At the present time, however, we are pleased that the agency is at least seriously considering half a loaf.


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 and registered in the Bar Register of Preeminent Lawyers. He was also recently named to the New York Super Lawyers list. 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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