Obama’s New Waiver (I-601A) Regulation in Effect March 4, 2013

What is the new Waiver (I-601A) regulation that will be in effect on March 4, 2013?

Current immigration law requires that an individual who entered without inspection (or visa), or who remained in the United States beyond the time permitted on his I-94 (and is not married to a US citizen), obtain an approved waiver of inadmissibility before being allowed to become a Legal Permanent Resident.

The new Obama regulation changes the way in which certain qualifying individuals can apply this waiver. Under the current regulations, these individuals need to file the waiver of inadmissibility at the Consulate in their country of origin. Instead, the new provisional waiver regulations that will be in effect as of March 4, 2013 will allow qualifying individuals to apply for the waiver of inadmissibility (I-601A) here in the United States, while only having to travel to their country of origin to complete the residency application interviews (consular processing) at the US consulate, once the waiver is approved in the US.

What is the benefit of this new waiver regulation?

The benefit of the new waiver regulation is enormous. In the past years, individuals who needed an approved waiver of inadmissibility to become Legal Permanent Residents had to be separated from their families generally between 9 to 14 months to wait for the adjudication of the waiver of inadmissibility at the US Consulate in their country of origin. The new provisional waiver regulation will significantly reduce the time families are separated by allowing the waiver of inadmissibility to be filed and approved in the United States, only requiring the applicant to travel to their country of origin to complete consular processing once the waiver is approved, in a process that should take 2 to 4 months.

Who qualifies to benefit from this new regulation?

Any person currently in the United States who is over the age of 18:

1. Who does not have a prior order of deportation or disqualifying criminal conviction;
2. Who has a family immigration petition (I-130) approved, which was filed by a US citizen spouse or parent;
3. Who has been unlawfully present in the US for more than 180 days;
4. Who has paid the consular processing fee and whose appointment at the consulate was not scheduled before January 3rd, 2013; and
5. Whose US citizen spouse or parent would suffer extreme hardship if the individual had to remain outside the US for an extended period of time.

***Important Note: If you do not have an approved or pending I-130 family petition filed for you by either a parent or spouse, you can file one right now so that you can proceed with an application for a provisional waiver of inadmissibility here in the United States after your I-130 is approved.

What happens if I have a pending I-130 family petition?

You have to wait until the I-130 is approved before you can file for the I-601 A waiver. It is important to note that either your US Citizen spouse or parent must have filed the I-130.

Can I benefit from this regulation if I have never filed an I-130 petition?

Yes. Your US Citizen spouse or parent can file the I-130 for you right now. Once it is approved, you will be able to file a provisional waiver of inadmissibility under the new regulations if you meet the eligibility requirements previously described.

What happens if I have an approved I-130 petition and my appointment at the US consulate was scheduled before January 3rd, 2013?

You may still be able to take advantage of this regulation, but you may have to file an additional I-130 petition.

Does this regulation apply to waivers needed for reasons other than unlawful presence?

No. This regulation only applies for waivers of inadmissibility because an individual entered the US without inspection (or visa) or accrued unlawful presence. The new regulation does not apply for waivers needed because an individual has a previous order of deportation, has committed a fraud violation (i.e. entering or attempting to enter with false documents, etc.), or has a prior criminal conviction.

Why should individuals who qualify under the new provsional waiver regulation act now?

Even though this is not a perfect solution because family members must still travel to their country of origin to complete the green card process, this regulation significantly reduces the time families must be separated and it is a great way to test the waters and see if your waiver is approvable before traveling and separating the family.

While there is much talk about a possible immigration legal reform, this is something that generally takes a long time because any proposed change in the law requires Congress to vote and pass it. The speed in which a new immigration law could be passed depends on the list of priorities Congress currently has. Also, it is unknown what will be the final shape of any new immigration law. Instead, this new waiver regulation enacted by President Obama is a tangible benefit that is available now for those who are eligible. Persons who qualify for this regulation should not waste any time and start the process.

If you think you may qualify to benefit from this new regulation, please call our office to schedule an appointment as soon as possible at: (617) 303-2600 (ext.0). We can start gathering the required documentation and preparing the waiver application so that you will be ready to file on March 4, 2013.

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