AMNESTY, executive orders, federal lawsuits, injunctions are words that have been tossed around frequently this year in regards to immigration. For many immigrants, much of the information is overwhelming. It seems like President Obama’s executive actions to aid unlawful immigrants have been met with strong opposition. Popular items such as extending Deferred Action for Childhood Arrivals (NEW DACA) and Deferred Action for Parental Accountability (DAPA) have been halted by the Federal Court. Despite these lawsuits, good news was revealed last week by USCIS as they are proceeding with the expansion of the I-601A provisional waiver.
On March 4, 2013, the unlawful presence provisional waiver procedure took effect. Traditionally, immigrants that were unable to adjust status in the United States must leave the United States to consular process their immigrant visas with a waiver for their unlawful presence. However, many immigrants were wary of the risks. If the waiver failed at the US consulate, they would be unable to return to the United States and reunite with their wife and children. The waiver procedure, known as the I-601A provisional waiver, aimed to relieve such dilemma. It allows for immigrants, physically present in the United States, to file for a provisional waiver in the United States. If the provisional waiver is approved, then the immigrant would proceed with normal consular processing without having to risk denial of the waiver abroad. The provisional waiver will dramatically reduce the risk of leaving the United States to obtain an immigrant visa.
On November 20, 2014, President Obama announced a series of executive orders aimed to fix our broken immigration system. Among one of the orders was to expand the I-601A provisional waiver. Currently, a provisional waiver is only available to applicants with an immediate relative petition and with a US citizen qualifying relative. Practically, it only benefited a spouse of a US citizen, a child of a US citizen over the age of 18, but under 21 who has accrued unlawful presence, or in limited cases, an applicant with a 21 year-old (or older) US citizen son or daughter and a US citizen parent. But what about those that are petitioned by permanent residents? What about those that only have a permanent resident spouse or parent as a qualifying relative? The new initiative aims to provide relief for those that were not covered.
On July 15, 2015, the Department of Homeland Security issued a draft of the proposed changes pursuant to President Obama’s executive orders. The proposed changed would expand the I-601A provisional waiver to cover immigrants in all immigrant visa categories such as family-sponsored immigrants, employment-based immigrants among others. Additionally, the qualifying relative has been extended from only US citizen spouse and parents to lawful permanent resident spouses and parents. The proposed expansion will permit any immigrant seeking an immigrant visa who would be eligible for an I-601 waiver of unlawful presence abroad to now apply for a provisional waiver BEFORE leaving the US to attend to his or her immigrant visa interview.
These changes are a step towards the right direction in providing relief for many people currently living in the United States unlawfully. The proposed changes are currently under review and are not applicable until a final rule is issued. However, it should give people hope.
This expansion could be the difference between devastating family separation and family unity. At Wilner & O’Reilly, we have helped thousands of people and families stay together. Unfortunately, we still see many deserving individuals left without relief who can benefit from reform. This minor, but important change may apply to you. Take advantage and know if you qualify. Schedule your free consultation today.
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Kelly S. O’Reilly is a nationally known immigration expert and former immigration officer. He is a highly sought after speaker on immigration and employment compliance issues. Mr. O’Reilly serves as the current chair of the Riverside County Bar Association Immigration section and is a partner in the full-service immigration firm of the Wilner & O’Reilly where he provides free consultations. Mr. O’Reilly can be contacted at (714) 919-8880 and he welcomes email inquiries at [email protected].
