Ten year Bar Waivers Soon Available in US for Immigrants Who Did Not Enter Legally

In March 2012, the Immigration Service proposed a rule to improve waivers for certain immediate relatives (typically spouses) of US citizens to file for a “provisional” waiver of the ten year bar for unlawful presence.

This rule will go into formal effect in March 2013.

This rule affects immigrants such as border crossers who are unable to apply for green cards in the US.

Waiver applicants must show that separation from their US citizen relatives would result in extreme hardship to the family member.

The idea is to shorten the wait that US citizens are separated from their immigrant family members, as those relatives travel home to acquire an immigrant visa (green card).

Here are the basics:
• Form is called “I-601A” and can be filed in the US
• Applicant must be an “immediate relative” of US Citizen
• Must have approved family petition (or self-petition in certain instances)
• Must have Immigrant Visa case pending with the National Visa Center and pay fees. (Once fees are paid, one notifies Visa Center that he intends to file I-601A. This will be explained in instructions soon to be made available)
• Must prove that separation will cause extreme hardship to USC spouse / parent – historically this standard has been defined as a hardship other than “ordinary”
• Must not have been scheduled for Immigrant Visa interview prior to publication of final rule
• Individuals in removal proceedings may file I-601A, provided their case is terminated or administratively closed prior to filing

The waivers are not easy to obtain. Filing a 601A with the guidance of a very experienced attorney who exclusively handles immigration law is essential.

Written by: Harlan York

Immigration Attorney Harlan York is Former Chair, Immigration Section, NJ State Bar Association and Former Co-Chair, NY State Bar Association CFLS Immigration Committee. Mr. York appeared on National Television on CBS This Morning with Charlie Rose and Primer Impacto on Univision, as well as Telemundo, NBC, and PBS. He was honored as First Ever Immigration Lawyer of The Year in NJ by Best Lawyers.

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