I-601 Provisional Waiver Moving Forward As Public Comment Period Ends.

By Alan Lee, Esq.

The public comment period ended on June 1, 2012, on the proposed regulation to allow
3 and 10 year bar waiver applications to be filed and adjudicated in the States so that immediate relatives of U.S. citizens can travel overseas to immigrant visa interviews without fear that their green card applications will be turned down because of illegal stay in the States.  The waiver applications to be filed on new Form I-601A will require a showing of extreme hardship to the applicant's U.S. citizen spouse or parent if the waiver is denied.  Below is the text of our comment which may be of some interest to affected parties.

Sunday Aigbe, Chief, Regulatory Products Division,
Office of the Executive Secretariat
U.S. Citizenship and Immigration Services
Department of Homeland Security
20 Massachusetts Avenue NW,
Washington, D.C. 20529-2020

Re:  Comment on Proposed Rule for Provisional Unlawful Presence  Waivers of Inadmissibility for Certain Immediate Relatives

Dear Chief Aigbe,

The proposed rule for the I-601A provisional waiver is commendable as it promises to be the only substantial benefit that a great many undocumented immigrants will see in 2012.  Anything requiring legislative action appears doomed by the infighting in Washington and piecemeal litigated victories are hard fought and limited in the number of beneficiaries.  The final rule here will have sweeping effect and that is why it is so important that all factors that can make a better rule be considered.  I have three comments, one that goes to the substance of the rule, and two which are possibly outside your purview and go towards the rule's implementation. 

1. The rule should be expanded to either include those with I-212 waivers or to allow concurrent filing of I-212/I-601A waiver applications. 

The present proposal makes ineligible for provisional waivers those who are in removal proceedings that have not been terminated or dismissed, and those that are subject to a final order of removal.  However, the final rule should allow eligibility for those who have obtained I-212 permission to reapply for admission after deportation, exclusion, or removal.  An I-212 waiver which becomes effective upon the applicant's leaving the United States is already available.  It hardly makes sense to deny these individuals the ability to also file the provisional I-601A waiver.  An example is the case of Jose, who enters without inspection, marries a U.S. citizen and has two children, is apprehended years later at work, and ordered removed.  He then applies for I-212 permission to reapply which is granted to him by the U.S.C.I.S. field office contingent upon his leaving the country. 

U.S.C.I.S. should also consider allowing a joint filing of form I-212/ I-601A applications as the consideration of both involves adjudication of some of the same factors, and in principle, someone who is granted an I-601 waiver should also be granted I-212 permission as the I-601A waiver application has the more difficult criteria to meet.  For I-601A's, Section 212(i) of the INA will allow a waiver in the discretion of the Attorney General for a person who is the spouse, son or daughter of a U.S. citizen if refusal of admission will result in extreme hardship to the citizen.  An I-212 application does not require any special family relationships, but consideration of other grounds for removal, deportation or exclusion, recency of deportation, length of lawful stay in the U.S., the applicant's moral character, his/her respect for law and order, evidence of reformation and rehabilitation, family responsibilities, hardship on the applicant or others, and the need for his or her services in the U.S. (See Matter of Lee, 17 I & N Dec. 275, 279 (Comm. 1978); Matter of Tin, 14 I&N Dec.371, 373-74 (RC 1973); Matter of Carbajal, 17 I&N Dec. 272-274 (Comm. 1978).  The I-212 adjudication should not unduly burden an immigration officer who could adjudicate both applications at the same time.  Additionally U.S.C.I.S. would be benefited by collecting the filing fee of $585 for each I-212 application filed. 

2. The final rule should be expedited. 

U.S.C.I.S. previously expected the final rule to be in place by the end of the year.  We are already in the middle of a contentious presidential election campaign, and so this rule should be expedited to completion so that it does not become an outstanding issue for either side.  Promulgating the final rule on the eve of the election would bring possibly justified outcries that the Obama administration is pandering to the Latino vote to encourage more turnout.  Not issuing the rule until after the elections would have a dampening effect upon Latino voter turnout.  So it would appear that the best solution is to fast-track the rule as it is almost a certainty to come into effect. 

3. U.S.C.I.S. should gear up for a expected flood of applications. 

In the proposed rule, U.S.C.I.S. made abundantly clear that its data is inconclusive of the number of immediate relatives of U.S. citizens who are subject to the unlawful presence bars and would be eligible for I-601A applications.  Its Office of Performance and Quality provided estimates of future waivers of inadmissibility based upon current rules, and then added a sliding range of I-601A application numbers dependent upon what percentage of its estimates was met.  In Section VI, table 4, U.S.C.I.S. presented estimates of the increase in the number of waiver applications if the current rules constrained demand by 25%, 50%, 75%, or 90%.  Assuming conservatively in one instance that the constraints under today's rules kept 50% of the numbers down, U.S.C.I.S. estimated possible additional waiver applications as 9,833 in the first year of implementation through 12,198 in the 10th year for a ten year total of 109,775. 

We believe on the other hand that the number of applications will be much higher on the basis of anecdotal evidence that this law firm has seen of many individuals who have inquired about the provisional I-601A waiver.  Also throughout the years, the firm has consulted a large number of individuals who would qualify for the waiver but did nothing for fear of leaving the U.S. and not being allowed to return.  The agency will have a short window in which to gauge the demand and to act upon it when the rule goes into effect. 

But even before that, U.S.C.I.S. should have a contingency plan to handle a large number of applications to ensure that they do not take an inordinate period of time to adjudicate.  The new rule would be unfavorably perceived if a bottleneck developed in I-601A adjudications over 6 months.  Ideally the adjudication time should be between 3-5 months. 

Thank you for considering these comments.


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. 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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