unlawful presence

DHS last week published a long-awaited final rule expanding eligibility for the provision unlawful presence waiver to include family members of lawful permanent residents.

Individuals who are unlawfully present in the United States for more than 180 days trigger a three-year bar on reentering the country once they depart, or a ten-year bar if unlawfully present more than one year.  The unlawful presence waiver allows  individuals who are otherwise eligible to apply for an immigrant visa to waive this unlawful presence ground of inadmissibility if a qualifying family member will suffer extreme hardship in their absence. In 2013, USCIS created the “provisional” waiver, which allows individuals to apply for the waiver before departing the United States, avoiding lengthy separations from family members in the United States while the waiver is adjudicated. Until now, however, only U.S. citizen spouses or parents could serve as qualifying relatives for the purpose of the provisional waiver. Under the new rule, lawful permanent resident spouses and parents may also serve as qualifying family members for a provisional waiver. USCIS will begin accepting provisional unlawful presence waivers based on extreme hardship to LPR spouses and parents when the rule goes into effect on August 29, 2016.

The I-601A Provisional Unlawful Presence Wavier allows certain immediate relatives of United States citizens to ask that the inadmissibility ground of unlawful presence be forgiven before the applicant departs the United States for consular processing.  Having the I-601A waiver approved before the applicant departs the United States spares the applicant from spending months or even years outside the country while their waiver is adjudicated.

In order to qualify for an I-601A waiver, an applicant must be the beneficiary of an approved immigrant visa petition for an immediate relative and must demonstrate that the applicant’s United States citizen spouse or parent would suffer extreme hardship if the applicant is refused admission to the United States, among other eligibility requirements.

The expansion announced for I-601A waivers would expand the I-601A waiver process to allow lawful permanent residents to serve as the qualifying relative, instead of only United States citizens.  This expansion greatly increases the number of potential applicants who could qualify for an I-601A waiver.

Importantly, this expansion is still in the law-making process and is not yet final.  The I-601A expansion is currently open for notice and comment until September 21, 2015.  After this date, submitted comments will be considered and the proposed expansion may become law.