Thursday, January 3, 2013

Unlawful Presence I-601 Waiver: Advance Copy of USCIS Final Rule

The long awaited "Advance Copy of USCIS Final Rule to Support Family Unity During Waiver Process" was just released.  This final rule relating to the unlawful presence waiver is not effective yet, but at least we're getting a sneak peek at the regulation.  With this new change, spouses, parents, or children of U.S. citizens can file their unlawful presence waiver applications while still in the United States.  Once approved, they would still have to leave the United States but this time:
  1. For a much shorter time (weeks instead of months or years); and
  2. With an assurance that the applicant will be allowed to return to the United States after consular processing (ok, maybe not an assurance, but we'll unpack this on a different post)
Although this is a welcomed change that is sure to benefit many families, it's important to keep in mind that the "extreme hardship" standard is still very much in place.   What is "extreme hardship"? No one really knows for sure, since it's not defined in our immigration laws, but USCIS claims to know one when it sees one (hmm..).  In any case, many years of case decisions give us a good idea.
As an attorney who has successfully assisted many families in preparing waiver petitions throughout the years, it is very important that interested parties consult with a qualified immigration attorney before proceeding with the unlawful presence waiver.  In future posts we will discuss the "extreme hardship" standard, when is a waiver needed, what is a waiver, who is a "qualifying relative", how to apply, what questions to ask your immigration attorney, what documents to prepare, and other similar topics.  Stay tuned and thank you for reading.