On July 29, 2016, the Department of Homeland Security (DHS) published a final rule expanding the eligible group of qualifying relatives for extreme hardship. Previously, immigrant visa applicants could only establish I-601A eligibility based on “extreme hardship” to a U.S. citizen spouse or parent. Now, under the expanded regulations, I-601A applicants may request a waiver based on hardship to both a spouse or parent who is either a U.S. citizen or U.S. lawful permanent resident. The 2016 Rules are a major step forward for undocumented individuals in the family based categories married to permanent resident spouses. Thanks to the new rules, these families can now pursue an I-601A waiver and minimize lengthy separation from their jobs and families.
This new rule, effective August 29, 2016, builds on DHS’s 2013 provisional waiver regulations. Under the 2013 Rules, immigrant visa (IV) applicants in the U.S. with six months or one year of disqualifying unlawful presence could for the first time seek an extreme hardship waiver of inadmissibility prior to departing abroad for consular processing.
Before implementation of the 2013 Rule, waiver applicants could expect to wait at least six months abroad while awaiting a decision on an unlawful presence waiver. By allowing IV applicants to submit their waiver application prior to proceeding abroad for their consular interview, the I-601A process significantly shortened separation from employment and family.
Beyond the 2016 Rules’ eligibility expansion, the new I-601A regulations have eliminated application of the “reason to believe” doctrine for separate grounds of inadmissibility. The 2013 Rule prohibited issuance of an I-601A waiver if USCIS found a “reason to believe” the Applicant is inadmissible inter alia for health related grounds, fraud, smuggling, false claim to U.S. citizenship, a crime involving moral turpitude or controlled substance offense. In the experience of many practitioners, these reason to believe findings were erroneous and could be easily overcome at a consular interview. However, the Applicant would have to proceed under the normal I-601 waiver process after a consular interview, necessitating needless travel abroad and lengthy separation from work and family. Under the 2016 Rule, USCIS will not undertake a reason to believe analysis, but will instead permit the Applicant to sort out these separate grounds of inadmissibility at the consular interview.
Also of note, the 2016 Rules will also allow non-citizens in the United States under a non-executed final removal order to seek a waiver of prior removal inadmissibility while in the United States prior to filing the I-601A. Under the expanded rules, a non-citizen may file an I-601A waiver upon favorable adjudication by USCIS of a stateside I-212 waiver of a prior removal order.
Unfortunately, I-601A expansion does not solve “permanent bar” inadmissibility. Non-citizens with more than one year of accrued unlawful presence who have subsequently departed the U.S. and unlawfully returned, or who have unlawfully returned after execution of a removal order, are inadmissible for ten years, which must be spent outside the United States. Inadmissibility for unlawful reentry is not subject to waiver.
The new I-601A rule amending 8 CFR 212.7(e) can be found at 81 Fed. Reg. 50244 (Jul. 29, 2016).