The 601 A “Unlawful Presence Waiver” Can Keep You in the US

In August 2016, the Department of Homeland Security (DHS) expanded the eligibility for provisional unlawful presence waivers to all individuals who are eligible for the unlawful presence waiver and who can establish extreme hardship to a U.S. citizen, or lawful permanent resident (LPR) spouse or parent.

THIS WAS THE BEST NEWS FOR IMMIGRANTS IN A LONG TIME : This expansion makes it possible for many more immigrants to get green cards.

The old 601A rules: a review

Under law that began in 1997, anyone found having more than 180 days of “unlawful presence” in the US is subject to a three year ban on readmission starting from the date of departure. Anyone who accrues one year of unlawful presence has a Ten Year Bar (frequently called Castigo de 10 Años in Spanish).

This problem meant that if an immigrant had been in the country illegally but had to go back home for any reason, they would not be able to come back to the US for 3 to 10 years – if at all.

This dilemma left immigrants either stranded in the United States for fear of the bar, or stranded in his home country.

In 2013 – in recognition of the hardship this caused many families, a 601A waiver of the 3 and 10 year bars was created in order to allow immigrant family members to apply for waivers – before appearing at the United States Embassy for a green card interview. This program helped thousands of immigrants, typically spouses of US Citizens.


New 601A waiver: 4 main changes

1)More people can apply

Under the old rule only immediate relatives qualified (usually spouses of US citizens ), and had to prove extreme hardship. This was for family-based immigration only.

Under the new rules anyone can apply. Read that again…ANYONE who is eligible for an unlawful presence waiver regardless of their immigrant visa classification as long as they can prove extreme hardship to relatives who are lawful permanent or U.S. citizens.

Whether you are applying for a green card through employment-based immigration, family-based immigration, the diversity visa lottery, or a special immigrant classification – if you fall into any of these categories, this new waiver may be for you!

2)No more cut-off date

Under the old rules only immigrants with visa interviews AFTER Jan 3 2013 were eligible for the waiver. This restriction has been lifted.

3) Even if you have a final order of removal you can still apply!

Under the old rule once you had a final order of deportation or removal, you could no longer apply for the provisional waiver. The newly expanded 601A waiver allows even those immigrants who have been handed their walking papers a chance for reprieve in the form of Form I-212.

4) Less qualifications than before

Under the old unlawful presence waiver, USCIS had to deny a provisional waiver application if USCIS has “reason to believe” that the applicant may be subject to a ground of inadmissibility other than unlawful presence at the time of the immigrant visa interview. This caused a lot of confusion – because of this change under the new waiver, the immigrant must only prove hardship, and not “reason to believe.” I will write more about this in the weeks to come.

5) There’s never been a better time to call an immigration lawyer

If you are an immigrant – with lawful US citizens or green card holders in your family – who is here unlawfully, you should contact an immigration lawyer as soon as possible to see if you can benefit from this newly expanded waiver.

6) We can answer your questions

If you have any questions about this or any other immigration related questions please feel free to contact us at Harlan York & Associates.

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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