On July 22, 2015, the Department of Homeland Security proposed a rule in the Federal Register that would expand the current I-601A Provisional Unlawful Presence Waiver eligibility requirements. The current I-601A provisional unlawful presence waiver rule went into effect on January 3, 2013, and it allows foreign nationals who have a U.S. citizen spouse or parent who will suffer extreme hardship without the foreign national present in the U.S., to travel to their home country for a consular interview, and return promptly to the U.S., as Lawful Permanent Residents. The provisional unlawful presence waiver is limited to those foreign nationals whose sole issue regarding admissibility is unlawful presence. The provisional unlawful presence waiver process promotes family unity by reducing the time that eligible individuals are separated from their family members while they complete immigration processing abroad.
On July 29, 2016, the July 22, 2015, proposed rule became a final rule and the limited eligibly requirements of the I-601A provisional waiver have been expanded. The new final rule expands eligibility for the provisional unlawful presence waiver to all individuals who are statutorily eligible for the waiver of the unlawful presence ground of inadmissibility. The I-601A provisional waiver will now encompass a wider pool of qualifying relatives for foreign nationals who are seeking the provisional waiver. USCIS will also update its Policy Manual in order to provide guidance on how USCIS should now make “extreme hardship” determinations based on the new final rule. To qualify for a provisional waiver under the new final rule, applicants must establish that their U.S. citizen or lawful permanent resident spouses or parents would experience “extreme hardship” if the applicants are not allowed to return to the United States.
The final rule expanding the I-601A Provisional Unlawful Presence Waiver goes into effect on August 29, 2016. USCIS will not accept requests for a provisional waiver under the new expanded guidelines until the final rule takes effect on August 29, 2016. Applying for a provisional unlawful presence waiver is a very complicated process and one that should be completed correctly the first time. Assistance from an experienced attorney is highly recommended. If you believe you qualify for a provision unlawful presence waiver under the new rule expansion, please contact Attorney Monge at (703) 273-5500, to schedule your consultation.