While there is no guarantee from the U.S. Government that the process for adjudicating I-601 unlawful presence waivers will change, USCIS has issued a notice of intent to change the current procedure. The primary change would be to allow a person to apply for an I-601 waiver while still in the United States in order to reduce lengthy separations from their family that result from the current process of having to leave the country before the application is ever made. USCIS plans to publish a notice of proposed rulemaking in the coming months and will be receiving comments from interested parties during this time before publishing a final rule.

I-601 waivers are required to obtain a waiver of the three and ten year bars that attach to a person who has accrued more than six months of unlawful presence in the United States. The potential change to the current I-601 adjudication process is based on the serious problems with the current procedures. Currently, a person who has accrued unlawful status is required to leave the United States before filing the I-601 with appropriate consulate abroad. The person then will file the I-601 waiver as well as an application for visa processing abroad. The person then must wait for the appropriate consulate or embassy to adjudicate the I-601 waiver. The adjudication times can run into years in some cases. Furthermore, there is no guarantee that the waiver will be granted. Resultantly, a person who has accrued unlawful presence in the United States, but has a mechanism to adjust their status to that of a lawful permanent resident, faces a very significant hurdle in terms of long term and potentially permanent separation from his or her U.S. family. The new proposed procedure would alleviate the time that a person with a meritorious case for an I-601 waiver is separated from their family by allowing the person to file their I-601 waiver with the appropriate consulate while still present in the United States. This would greatly reduce the period of separation from the family. Upon approval of an I-601 waiver, the person would still be required to exit the United States and obtain their visa through normal consular processing.

The potential new provisional waiver process will have limitations. While the I-601 waiver applies where there is hardship to LPR spouses or parents, the provisional waiver process would only apply to cases where the hardship is to U.S. citizen spouses or parents. Additionally, the new rule will only be available to individuals who only need unlawful presence waivers. People who need additional waivers for other grounds of inadmissibility such as fraud or certain criminal convictions will have to continue to use the normal waiver adjudication process (leaving the country before the waivers are submitted to the consulates abroad). This new, potential rule would dramatically reduce the period of separation between a person eligible for an I-601 waiver and his U.S. family members. Under current rules, an individual is not permitted to even apply for the waiver until a consular officer has made a finding of inadmissibility. If this rule is passed, the waiver application will be adjudicated while the person remains in the United States.

As a final reminder, no new rule is yet in place. Any application for a provisional waiver of unlawful presence will be rejected by USCIS at this time. USCIS is working diligently on the rule making process and hopes to have a final rule published by the end of 2012 after which there will be a 60 day comment period on the proposed rule.