What Is the New USCIS Provisional Waiver (601A) for Unlawfully Present Immigrants?

New Rule on Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives finally announced

Recently, the Secretary of Homeland Security Janet Napolitano announced the final posting of a rule that has for long been under speculation and long awaited. The new rule is a much welcome relief for those US citizens who are separated from their relatives during the time taken for approval of their citizenship status. The new law, on Unlawful Presence Waivers of Inadmissibility reduces much of the time that U.S. citizens spent separated from their immediate families, whether it is their parents, spouse or children who are still in the process of obtaining immigrant visas and becoming lawful citizens of America.

This is a follow up on, the proposed rule that was initiated on April 2, 2012, as declared by the U.S. Citizenship and Immigration Services (USCIS). This rule tries to amend its previous regulations and allow certain immediate relatives of U.S. citizens who are physically present in the United States to request provisional unlawful presence waivers before they have to depart from the United States for the processing of their immigrant visa applications.

Under the previous law, even the most immediate relatives of U.S. citizens were not eligible to adjust status in the United States and become lawful permanent residents. They had to leave the U.S. and obtain an immigrant visa abroad, which was rather stressful on them since the period for waiting for processing could be as long as 2 years too! It also stated that those individuals who had accrued more than six months of unlawful presence during their stay in the United States must obtain a waiver to overcome the unlawful presence inadmissibility bar before they could come back to the United States after leaving to obtain an immigrant visa. A totally unjustified waiver process had specified that immediate relatives could not file a waiver application until they had appeared for an immigrant visa interview abroad.

This final rule of Unlawful Presence Waivers of Inadmissibility clarifies amendments on the previous rule as well as other provisions within the regulations. The new rule implies, the following-

The new Unlawful Presence Waivers of Inadmissibility waiver process specifies that immediate relatives must still depart the United States for the consular immigrant visa process.
The new rule however grants these individuals, the license to apply for a provisional unlawful presence waiver before they depart the United States for attending immigrant visa interviews in their countries of origin.
In order to be able to obtain a provisional unlawful presence waiver, the applicant must have the following-

Be inadmissible only on account of an unlawful presence.
Must be an immediate relative of a U.S. citizen,
Must show that the denial of the waiver would result in extreme hardship to the U.S. citizen, in some way.
By forming this new law, the Department of Homeland Security (DHS) hopes that these changes will help in reducing the length of time in which U.S. citizens are separated from their immediate relatives who are engaged in consular processing outside the US. It is also believed that this new process will reduce the degree of interchange between the USCIS and the U.S. Department of State (DOS) helping establish better efficiency for both the waiver applicants as well as the U.S. government.

As a part of the unlawful presence waiver, the USCIS will publish a new form, termed as Form I-601A. This application for a Provisional Unlawful Presence Waiver will be specifically for individuals to use when they are applying for a provisional unlawful presence waiver under the new procedure. Those who have filed the Form I-601A must notify the Department of State’s National Visa Center about their willingness to seek a provisional waiver from USCIS body. The entire process will come into effect from March 4, 2013 onwards.

There are of course clauses that those who apply for the unlawful presence waiver must follow.The new rule makes it clear that the filing or approval of a provisional unlawful presence waiver application cannot do the following-

Confer any legal status on the individual.
Protect any alien from being placed in removal proceedings or being removed from the US in accordance with current DHS policies governing the initiation of removal proceedings and the subsequent use of prosecutorial discretion, as and when deemed necessary.
The law does not protect against the accrual of additional periods of unlawful presence.
It does not authorize an alien to enter the US without securing appropriate entry documents or a visa.
The unlawful presence waiver will not convey any interim benefits like that of parole, or employment authorization.
For those of you who are looking for a good immigration lawyer,it is recommended that you consult a lawyer who will guide you through the entire process well and advice you how best to go about it. For this you might want to contact, the well experienced lawyers from the Shah Peerally Group.