Major changes are pending to the method in which waivers of inadmissibility based on extreme hardship to a U.S. citizen are processed (I-601 applications under INA §212(a)(9)(B)), announced January 6, 2012 by the Department of Homeland Security.  If you have been unlawfully present in the United States for a period greater than six months, and are thus subject to the three or ten-year bar to admission if you leave the country, and you have a spouse or child that is a U.S. citizen, this directly impacts you.

The new rule significantly changes the government’s method of processing and approving I-601 waiver applications, allowing the Department of Homeland Security in the United States to accept and issue provisional approval of I-601 waivers on grounds of unlawful presence while the applicant remains in the United States.  Upon provisional approval by DHS, the applicant could then apply for the immigrant visa at a U.S. consulate abroad without an eternal wait for the waiver.

To be sure, the ‘provisional’ qualifier likely adds an extra layer of review at the U.S. consulate to ensure all immigrant visa qualifications are met (including, importantly, the primary requirement that the U.S. citizen relative would suffer ‘extreme hardship’ due to separation), but the difference in waiting time would likely be weeks compared to years.  Current practice is for the applicant for an I-601 waiver of inadmissibility, if otherwise qualified for permanent residence through a qualifying immediate family relationship, to leave the United States for often two years or more to wait for processing of the waiver by USCIS, and then further review and delay at the U.S. consulate in their home country.

For millions of presently illegal immigrants, the anticipated long periods of uncertainty and separation from family have led to a deliberate choice to dismiss the very prospect of success for an I-601 waiver, and to remain in the United States, underground and hopefully undetected.  In many cases, this paradoxical choice is made despite their qualification for the extreme hardship waiver and thus the eventual goal they seek: U.S. permanent residence.

Notice of this significant modification to the I-601 waiver application process was published in the Federal Register on Friday, January 6, 2012.  The publication begins a six-to-nine month process of rulemaking by agencies within the Departments of State and Homeland Security in order to administratively implement the new waiver application method.

If you feel you may qualify for an I-601 waiver, contact us today to schedule a consultation, and stay tuned to Golden Gate Immigration for further developments.