USCIS Proposed Rule for I-601 Waiver Process Would Allow Families to Stay Together

U.S. Citizenship and Immigration Services (USCIS) has published a notice of intent in the Federal Register, 77 Fed. Reg. 1040 (Jan. 9, 2012), outlining a plan to streamline the process of filing Form I-601, Application for Waiver of Grounds of Inadmissibility. The new plan would allow certain individuals who are seeking permanent residence and are immediate relatives of U.S. citizens to apply for and be granted provisional waivers of inadmissibility under INA §212(a)(9)(B)(v) prior to departing the U.S. for consular processing of their immigrant visa applications.

Under the immigration laws, a U.S. citizen can file a visa petition for his spouse and children that, once approved, results in a visa becoming immediately available. Spouses and children who entered the U.S. unlawfully must leave the United States to actually receive the visa at the consulate in their home countries. Leaving the U.S. after unlawful entry, however, subjects such an immigrant to a three or ten year bar to reentry. The immigrant can file an I-601 application to waive this bar based on “extreme hardship” to a qualifying relative, but he must file the application while outside the U.S. The problem with the current process is that it can take months or even years for a waiver application to get approved. This means that the immigrant must be out of the country, separated from his U.S. citizen family, the whole time the application is pending.

The new plan would essentially streamline the process by allowing immigrant relatives to file the I-601 waiver application in the United States. Thus, the time the application is pending will no longer be spent separated from family. Such an applicant would still be required to leave the country to process the visa petition at consulate, but under the new rule, he would leave with a “provisional waiver” allowing him to reenter immediately upon approval of the visa petition.

USCIS has stated it will further develop, and ultimately finalize, this proposal through the rulemaking process.