Breaking Down The New, Proposed Waiver Process

As many of you know, President Obama is attempting to simply the process of obtaining one’s green card through a family member.  If an immigrant is in the US illegally for more than one year, when that person leaves the US for a consular appointment to get his or her legal permanent resident status, they are subject to a ten year penalty in which they cannot return to the US—unless they can show that their documented spouse and / or parents will suffer extreme hardship because of this separation.

Under the old rules, an applicant had to depart the US first, and then file for this waiver (known as the “I-601 waiver”, as that is the name of the form used for this pardon) at the US consulate.  The difficult thing about this was that an immigrant could never know if the waiver would be approved or denied, until they already were outside the US, thus subject to the 10 year penalty outside the US.

As such, the Obama Administration has said that applicants still have to leave the US, but now they can file the waiver in the US, wait in the US for the answer, and if it is granted, then they would leave for a short time to be interviewed at the US consulate.  Instead of waiting months and in some cases, years, the consular process should take about 3 to 4 weeks, between getting the medical exam done in advance, going to the consular interview, then waiting for the decision to be processed and sent to the applicant.  The final rule for this new waiver process should be ready by August 2012 (more or less), as it is currently under review.

Activists and analysts have said that this is a step in the right direction, since families will be able to remain united, and the waiver process will be more efficient, saving the US government more resources.  However, there must be some changes to this proposed process, and the American Immigration Lawyers Association (AILA), along with other organizations, will be presenting some comments to the Obama Administration over the next two month comment period, with some possible suggestions being:

  1. The new waiver process should not be limited only to US citizen spouses and to US citizen parents who are petitioning their children (who in this case must be between 17 and 20 years of age).  The waiver process should include all beneficiaries to a family-based petition, regardless of who is petitioning for them.
  2. The new waiver process should allow for an appeal or a motion to reopen if needed.  The proposed regulations state that in order to streamline this new waiver process, no appeals or motions to reopen will be accepted.
  3. If a person has filed an I-601 previously, they should be allowed to try again under the new regulations.  Again, the proposed regulations state (unnecessarily) that if an applicant has already filed for an I-601, they cannot file again under this process.
  4. The new waiver process should not demand that an applicant have a finalized immigration court case before they file the I-601.  For example, an applicant who is requesting voluntary departure will have either two or four months to depart the US, and this invariably will not be sufficient time for the I-601 to be decided in the US before the applicant must leave.

In closing, people should not file their family-based petitions (I-130) without consulting with an immigration attorney first.  Even if the I-601 waiver is approved, there could be unforeseen complications at the consular interview, and as such an applicant should always consult with a reputable attorney before filing any applications with immigration authorities!

For more information or for a consultation, feel free to contact Meredith Brown at 818-541-9999.