With a few exceptions, immediate relatives of U.S. citizens (spouses, parents and children under 21) who entered the U.S. without permission cannot become permanent residents based on a petition filed by a U.S. citizen immediate family member without leaving the United States. This is the penalty U.S. immigration law places on individuals who entered the U.S. without permission.
However, when such individuals leave the U.S. to apply for an immigrant visa abroad (based on a petition filed by their U.S. citizen family member), they trigger inadmissibility bars based on their unlawful presence. For those who have been unlawfully present for at least six months, leaving the U.S. subjects them to a “three-year (unlawful presence) bar.” For those who have been unlawfully present in the U.S. for at least one year or more, leaving the U.S. subjects them to a “10-year bar.”
Once either bar is triggered, the person cannot legally return to the U.S. for either three or 10 years unless s/he successfully applies for an “extreme hardship” waiver. This requires a showing that the applicant’s U.S. citizen or Lawful Permanent Resident parent or spouse would suffer extreme hardship if the applicant were not allowed to return to the U.S. Previously, applicants could only file the I-601 extreme hardship waiver after leaving the U.S., attending their immigrant visa interview, and being denied the immigrant visa for triggering an unlawful presence bar. This process often took many months, if not years. Worse, if the waiver was ultimately denied, the foreign national family member would be separated from his/her family members in the U.S. for either three or 10 years. /Confronted with this risk, many people choose to remain undocumented in the U.S. and hope for immigration reform.
On July 29, 2016, USCIS announced a final rule expanding the existing provisional waiver process. The new rules will go into effect on August 29, 2016, and the updated I-601A application form will be posted on USCIS’ official website on the same date. Notably, the new regulations expand eligibility for the provisional waiver process to all individuals statutorily eligible for the unlawful presence waiver. Until now, only immediate relatives of U.S. citizens were eligible to seek such provisional waivers before departing the United States for the processing of their immigrant visas. The new regulations expand the provisional waiver in the following ways:
Since August 29, 2016, the following requirements need to be met before filing an I-601A Provisional Unlawful Presence Waiver:
In order to have the I-601A provisional “extreme hardship” waiver approved, the applicant must document how his or her family member(s) will suffer if the waiver is not granted. The waiver requires a showing of “extreme hardship” to a US citizen or Lawful Permanent Resident spouse or parent, although suffering to children and other family members is relevant. Waiver applications should include detailed statements from the applicant and his or her family members as well as evidence of any and all medical and psychological conditions, financial hardship, emotional bonds and country conditions. Even if the different hardship factors individually do not rise to the level of “extreme,” an applicant can still prove “extreme hardship” if the totality of all hardship factors are extreme when considering the evidence in the aggregate. Consequently, it is essential to leave no evidence out of the packet and to assure that all potential hardship elements are fully explored and documented.
