601A Waiver Proposal

The Immigration Service has recently proposed a change in the way it processes 601 Waivers for illegal immigrants in the U.S. who are married to U.S. citizens. Any immigrant who has committed fraud by using a fake passport, for example, needs a 601 waiver in order to get a green card. Other immigrants who were in the U.S. illegally and then left the country or who were deported, also need 601 waivers in order to return to the U.S. and receive their green cards. Most immigrants who have been ordered deported by an immigration court have to go back to their countries to submit their 601 waiver applications at the consulate. Due to the long processing times at the consulate, they are often separated from the families for more than a year, and sometimes, more than 2 years. I have gotten waivers approved at the consulates in Guangzhou, as well as in other countries such as Lithuania and Albania. I currently have one client who I helped to get his waiver approved at the Guangzhou consulate and he is now waiting for his second interview so that he can return to the U.S., but the entire process has taken more than one year so far and his wife has had to travel back and forth between China and the U.S. to work and spend time with her husband until he is able to get his green card.  Many immigrants are not eligible to file green card applications while they are living in the U.S.  For example, immigrants who enter the U.S. without inspection across the Mexico or Canada border, are only allowed to apply for green cards under a few rare exceptions. The new rule would allow an immigrant who is not eligible to apply for a green card in the U.S., to file for a waiver while they are in the U.S. so that the waiver process, which takes a long time, can begin while the immigrant is still living in the U.S. with his or her family. Then, the immigrant could return to his country to apply for a green card at the consulate after the waiver has already been decided.  Under the new rule, the immigrant may only be outside the U.S. for a month because the waiver process would already be completed. Critics of this proposed rule say that if the waiver were denied, then the immigrant would simply not leave the country.

Under the current process, a U.S. citizen must file an application (Immigrant Petition) with USCIS and prove eligibility including spouse or parent family relationship and financial ability to live in the U.S. without any government assistance. If approved, the case gets sent to a U.S. consulate in the foreign nationals’ home country for a personal interview. At the interview, the person who was in the U.S. undocumented has to request a waiver of “unlawful presence” or of fraud, asking for “forgiveness” because not being able to live in the U.S. would result in “extreme” hardship to the U.S. citizen spouse or child. At some consulates, the decision on the waiver is not made until several months after the interview. Meanwhile, the family is separated from one another while waiting for a decision on the waiver. If the waiver is denied, the immigrant does not get to re-enter the U.S. and can be permanently separated from his or her spouse and children.

This proposed rule has not made any change to the law yet. Immigrants should be aware that some lawyers or travel agents may not understand this and charge them legal fees to file waivers in the U.S. Any applications that are improperly filed could be immediately denied and the Immigration Service usually takes all filing fees, and does not return them to immigrants who make mistakes when they file their forms. This could be an expensive mistake for immigrants who pay a lawyer two or three thousand dollars when they are not eligible to file. I will report on this issue in the future when there is a final decision on whether this new rule will actually go into effect or not. Until the rule goes into effect, immigrants in the U.S. who need waivers, should just wait for more news.

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