By David Sperling, Esq.
A new regulation will help tens of thousands of undocumented immigrants to get their Green Card.
The rule, which takes effect on Aug. 29, expands eligibility for the I-601A “provisional waiver” to include family members of U.S. Citizens and Legal Permanent Residents. This regulation is not a law, nor is it an “Executive Action” that depends on who occupies the White House.
Thanks to this waiver, certain beneficiaries of Citizens and LPRs will be able to obtain their Green Card after a brief trip to their home country for consular processing after their “priority date” becomes current. More on that later.
The categories most likely to benefit from this new rule are spouses of LPRs. Other beneficiaries include children of LPRs and adult children of U.S. Citizens.
This new rule, which was issued by U.S. Citizenship and Immigration Services, expands on a 2013 program that has helped undocumented spouses of U.S. Citizens and other “Immediate Relatives” obtain their Green Cards through consular processing quickly without risking being stranded in their home countries.
This new I-601A waiver is complicated, and requires the assistance of an immigration expert. Potential beneficiaries should avoid “notarios” and other non-lawyers who offer immigration services. A key element of the waiver requires proof that the U.S. Citizen or LPR petitioner would suffer “extreme hardship” in case of separation from the beneficiary.
That may be difficult to prove for some relationships. For example, an adult son who does not live with a U.S. Citizen or LPR parent who may not be able to prove “extreme hardship” to the petitioner.
Furthermore, the beneficiary must have an approved I-130 Petiton for Alien Relative that has a current “priority date.” Immediate Relatives — spouses of U.S. Citizens, minor children of U.S.Citizens and parents of adult U.S. Citizens — are not subject to waiting list. However, all other categories are placed on waiting list.
For spouses of LPRs of all Latin American countries except Mexico, the current priority date for August is Nov. 14, 2014 — meaning that the State Department is now processing cases that were filed before that date. Adult children of U.S. Citizens born in Mexico have a current priority date of May 22, 2009.
The waiver is necessary because immigration law contains a 3- and 10-year bar for what is called unlawful presence. If an immigrant enters illegally (or overstays a visa) for more than one year, he or she face a “10-year bar” if they leave the United States for any reason, including consular processing.
There are many tragic stories of undocumented immigrants that return to their home country, unaware of the 10-year bar, and who may be stranded for many years.
With the approval of a provisional waiver, however, the family members is basically pre-approved, meaning that in most cases they need only to spend two to to three weeks intheir home country for fingerprints, a medical evaluation and interview at U.S. Embassy.
However, a family member should never depart for consular processing without having a reputable attorney to give the green light. Certain cases raise red flags — especially a criminal record in the United States or home country, tatoos, especially associated with gangs, and previous contact with the U.S. Embassy including visa denials.
All in all, however, this new waiver is a great opportunity for tens of thousands of undocumented immigrants to finally obtain their Green Cards.