I-601A Summary and Comment

By Alan Lee, Esq.†

With the promulgation of the final regulation “Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives”, on January 3, 2013, the rule is finally set for the acceptance of waiver applications in the U. S. to cure the bars caused by illegal presence of non-adjustable immigrants who are the parents, spouses, and children (at least 17 and unmarried) of U. S. citizens. The waiver applications will be submitted and adjudicated before the undocumented immigrant makes a final decision on whether to attend an immigrant visa interview at an American consulate or embassy for the green card. Under pre-I-601A rules, immediate relatives who were not able to adjust status to permanent residence in the States would have to travel outside the U. S. for an immigrant visa interview at which time they would be denied, asked to submit a waiver application, and have to sit outside the U. S. during the time that the waiver application was being adjudicated in hopes that it would not be turned down. The criteria for the I-601A provisional waiver to be approved is a showing of extreme hardship to a U. S. citizen parent or spouse if the applicant cannot return to the States. A small summary and comment as set down below may prove instructive to the reader.

A.) Eligible alien:

  1. present in the U. S. at the time of filing the application and for biometrics;
  2. upon departure is only inadmissible because of illegal stay in the U. S.;
  3. qualifies as the immediate relative of the U. S. citizen (spouse, parent or child and if child, must be at least 17 years of age);
  4. is the beneficiary of an approved I-130 immediate relative (IR) petition;
  5. the case is pending with the Department of State (DOS) based on the IR petition and the immigrant visa processing fee has been paid as evidenced by a fee receipt from DOS;
  6. will depart the U. S. to obtain the IR immigrant visa;
  7. shows extreme hardship to a U. S. citizen spouse or parent if the application is denied.

B.) Ineligible alien:

  1. has a pending I-485 application to register permanent residence or adjust status with U.S.C.I.S.;
  2. is in removal proceedings unless the removal proceedings have been administratively closed and not re-calendared as of the date of filing the I-601A application;
  3. has been ordered removed, excluded, or deported from the United States;
  4. is subject to reinstatement of a prior removal order;
  5. had an immigrant visa interview scheduled by the DOS prior to January 3, 2013, even if there was a failure to appear or the interview canceled or rescheduled on or after January 3, 2013;
  6. does not establish that refusal of admission to the U. S. would result in extreme hardship to a U.S. citizen spouse or parent, or that the application should be approved as a matter of discretion;
  7. is ineligible for an immigrant visa on grounds other than illegal stay in the States.

C.) Time to file the I-601A waiver:

    A waiver can only be filed upon the later of 2 events – March 4, 2013, or the receipt of a fee receipt from DOS’ National Visa Center (NVC) and inclusion of such in the I–601A waiver application package.

D.) Fee:

    $585 for the I-601A waiver application and $85 for the biometrics processing. Checks or money orders should be made out to “Department of Homeland Security.” A lockbox for filing has not yet been designated.

E.) Factors that U.S.C.I.S. has indicated it will consider in the determination of extreme hardship in the instructions of draft form I- 601A:
  1. Health – For example: Ongoing or specialized treatment required for a physical or mental condition; availability and quality of such treatment in the foreign country; anticipated duration of the treatment; chronic vs. acute or long- vs. short-term.
  2. Financial Considerations – For example: Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children with special needs; cost of care for family members (elderly and sick parents).
  3. Education – For example: Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time or grade; availability of special requirements, such as training programs or internships in specific fields.
  4. Personal Considerations – For example: Close relatives in the United States and country of birth or citizenship; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.
  5. Special Factors – For example: Cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access (or lack of access) to social institutions or structures (official or unofficial) for support, guidance, or protection.

F.) Suggested documentation from draft form I-601A instructions that applicants may include but are not limited to:

  1. Affidavits from the qualifying relative or other individuals with personal knowledge of the claimed hardships;
  2. Expert opinions;
  3. Evidence of employment or business ties, such as payroll records or tax statements;
  4. Evidence of monthly expenditures such as mortgage, rental agreement, bills and invoices, etc.;
  5. Other financial records supporting any claimed financial hardships;
  6. Medical documentation and/or evaluations by medical professionals supporting any claimed medical hardships;
  7. Records of membership in community organizations, volunteer confirmation, and evidence of cultural affiliations;
  8. Birth/marriage/adoption certificates supporting any claimed family ties;
  9. Country condition reports; and
  10. Any other evidence you believe supports the claimed hardships.

G.) Reasons why representation by competent legal counsel familiar with I-601 waiver application filings is recommended:

  1. U.S.C.I.S. statement in the final rule of January 3, 2013, that a review of I-601 processing statistics indicated a denial rate of 34%;
  2. Common knowledge throughout the years that I-601 applications are not among the easier ones that people do themselves. Although competent counsel cannot guarantee success, the chances of success are likely enhanced with proper representation.
  3. To the many commenters who thought that the current extreme hardship standard applied by U.S.C.I.S. was too rigid and should be relaxed, the agency reply that it was not modifying how it makes extreme hardship determinations or how it defines extreme hardship.

H.) Steps to take with the National Visa Center (NVC):

  1. Notify NVC before applying for the I-601A waiver application. Not notifying NVC may result in NVC scheduling an immigrant visa appointment at which point the applicant must notify the consular post where the appointment has been scheduled before applying for the provisional waiver.
  2. Notify NVC immediately after paying the immigrant visa processing fee and before applying for the provisional waiver by e-mail at NVC i601a@state.gov. In the subject line, provide the applicant’s name and date of birth and the petitioner’s name and date of birth.
  3. Applicants should especially watch out for cases in which the I-130 petition has already been approved and is located at the NVC. These applications may be de-registered and terminated for failure to respond to NVC correspondence. Where there is visa availability and the last contact with NVC is greater than a year ago, NVC will send a reminder letter requesting if the applicant is still interested in pursuing the visa. If that letter evokes no response within a year, NVC will begin the termination process stating that the application may be reinstated and any petition revalidated if within one year, the applicant can establish that failure to pursue the immigrant visa application was due to circumstances beyond the applicant’s control.

The above summary and comment does not purport to cover all the issues which will arise in I-601A processing, but will hopefully give the reader a good idea of what U.S.C.I.S. will be looking for in the provisional waiver applications.


 

† 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, Muhasba 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.

Copyright © 2003-2013 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.