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What is the new published rule on the Unlawful Presence Waiver(I-601A)?

Published on February 25, 2013 by in Immigration

As of March 4, 2013, certain immediate relatives of U.S. citizens (the spouse, minor children, or parents of a U.S. citizen) who are physically present in the U.S. will be allowed to request provisional unlawful presence waivers prior to departing from the U.S. for consular processing, eliminating the risk of long-term separation that has always been required to even seek the waiver.

For example, John Doe, a foreign national, entered the U.S. in 2005 without inspection. In 2007, John marries Jane, a U.S. citizen.  The Doe family wants to adjust Mr. Doe’s status, but an individual, like John and so many others, who entered the U.S. without inspection is ineligible to obtain adjustment of status to residence.  So, under the old law John would have had two options:

First, John could seek residence through processing an immigrant visa at a U.S. consulate in his home country. He would have to leave his family here in the U.S. and possibly his job.  As John entered the U.S. in 2005 without inspection and was not married until 2007, he would also be subject to a TEN YEAR bar (John can’t come back to the U.S. for TEN YEARS).  However, the ground of visa ineligibility may be waived by the consulate in John’s home country and a visa can be issued in the case of extreme hardship. So, he could not enter the U.S. again without applying for a waiver and proving that by denying him an immigrant visa for ten years, Jane would suffer extreme hardship. But, to apply for the waiver, John would have to first apply for the visa and be denied.

Second, John could remain in the U.S. in unlawful status. While, John would not be able to seek lawful employment, a social security card or even a U.S. driver’s license, John could at least be with his wife Jane for the next ten years.  However, his unlawful presence in the U.S. would also put him at risk of removal and subject to a TEN YEAR bar.

Under the Process that enters in effect March 4, John would still have to return to his home country before he obtained a visa, but could apply for a waiver before returning to his home country. John would still have to prove Jane would suffer extreme hardship in order to obtain the waiver.  The difference is that under the new process, John would know in advance if he would be allowed to return to the U.S.

So, if you feel like you fall under this new rule, and would like more information, contact the Law Offices of Christopher Alliotts, Inc. We can help with any questions you may have regarding the new “Unlawful Presence Waiver” rule.

 
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