Recently, the U.S. government finally approved the
provisional waiver, with the corresponding procedures to follow in the coming months. Under the previous 601 waiver policy,
individuals who entered the country without inspection could not apply for
permanent residence without leaving the country during the duration of the
waiver process. The new provisional
waiver has been applauded by immigration activists throughout the tri-state
area; and immigration lawyers in NJ, NY and throughout the country see the new
act as an important step in providing status to law abiding immigrants with
family in the US.
Who can apply for the Provisional Waiver?
First, in order to be eligible for the provisional waiver,
one must be the immediate relative of an individual who is a citizen of the
United States. Under US immigration law,
US citizens may petition for the following immediate relatives:
1.
Spouses;
2.
Unmarried children under the age of 21;and
3.
Parents (so long as the U.S. citizen is 21 or
older).
Second, one must have entered the country without inspection
(or entered the country without coming through a port of entry) and stayed for
over 6 months. The overwhelming majority
of this group of people crossed into the United States through the border with
Mexico. For individuals who have entered
into the country legally and overstayed their visa, they can apply for a green
card and stay in the country without having to apply for a waiver.
However, a person cannot apply for a provisional waiver if
he or she in inadmissible for a reason other than the fact that they were
unlawfully present in the US. This
primarily applies to those who have a criminal conviction that necessitates a
waiver of its own.
What is the 601A waiver application and what must it
show?
USCIS will release a new application called at 601A
waiver. This is a complex procedure that
is best handled by a provisional waiver lawyer, with a background in the previous
601 waiver application process. Much
like the conventional 601 waiver, the applicant must show that the rejection of
the waiver application will result in extreme hardship to his or her US citizen
immediate relative (note that the current USCIS statement on the provisional
waiver states that the hardship must be shown on a US citizen spouse or parent
only; so it is not clear whether hardship can be shown to children).
What are the procedures?
Though the exact procedures will be clear in the coming
weeks, there are certain general features that are known. First, the applicant will apply for a green
card though their immediate relative, and send the application to the embassy
in their country of origin. Then, the applicant will submit the 601A waiver
application. Next, the applicant will
inform the National Visa Center that he or she is applying for the provisional
waiver from USCIS. Finally, the
applicant will leave the country in order to appear at the visa interviewin
their home country’s US embassy. While there is still much to be decided, the
new rule will relieve the burden on countless number of immigrants who have
immediate relatives in the US but are living without
status.
