New categories of family members eligible to submit application for provisional unlawful presence waiver (I-601A)

In August of 2016, additional categories of family members of U.S. citizens and permanent residents became eligible to apply for a provisional waiver of inadmissibility due to unlawful presence in the U.S.

Expansion of eligibility for the waiver and purpose of the waiver

Previously, only immediate family members of U.S. citizens were eligible, and they had to show that denial of admission would cause hardship to a U.S. citizen spouse or parent. The new rule extends to all who are statutorily eligible for a waiver of the unlawful presence grounds of inadmissibility – including spouses and children of permanent residents. The qualifying person who would otherwise experience hardship can be a legal permanent resident spouse or parent of the applicant.

According to DHS, the new rule is intended to encourage eligible individuals – "including all beneficiaries of family-sponsored and employment-based immigrant visa petitions, as well as Diversity Visa selectees…who have a qualifying relative" – to complete the immigrant visa process in their home countries and to promote family unity. With the expanded rules for the I-601 A, a legal permanent resident spouse or parent of an applicant may serve as a qualifying relative.

Benefits: save time, prevent long family separations; allow visa processing abroad

The benefits of the expanded eligibility categories for the I-601A waiver application include time-saving and prevention of long family separations. The DHS stated that the expansion of eligible family members should reduce hardships and save resources and time for both government agencies and applicants.

Without such a waiver, unlawfully present non-citizens have often feared leaving the U.S. to apply for immigrant visas because of the prospect of long separations from their families. The waiver helps applicants who have been unlawfully in the U.S. to avoid a three-to-10-year inadmissibility status after returning to their home countries. In the words of the Department of Homeland Security, "[the] purpose [of the expansion of eligibility] is to facilitate the applicant's departure to attend an immigrant visa interview abroad so that they may complete their application process for an immigrant visa."

Requirements: physically present in the U.S.; immigrant visa already in process

Requirements for approval of a waiver through I-601A include: physical presence in the U.S. when filing; age of 17 years or older; being in the process of obtaining an immigrant visa as the beneficiary of an approved petition (such as a petition for alien relative, petition for alien worker, petition for Amerasian, widower or special immigrant) and ability to prove that refusal of admission to the U.S. would cause hardship to a U.S. citizen or a legal permanent resident spouse or parent.

The importance of legal counsel

To avoid errors and save time, family members of citizens and LPRs in the U.S. who may qualify for a provisional unlawful presence waiver should work with an experienced immigration attorney. Trevino Immigration Law in San Antonio offers valuable advice and assistance. Inquiries are welcome. Se habla español.