On January 3, 2013, the USCIS finalized its regulation regarding the provisional adjudication of waivers for those who will be attending a consular appointment at a U.S. embassy or consulate and would be triggering the unlawful presence ground of inadmissibility. On July 22, 2016, the Obama Administration published a final rule expanding I-601A provisional unlawful presence waivers for individuals inadmissible under INA 212(a)(9)(B)(i)(I), (II). This new rule, effective August 29, 2016, builds on DHS’s 2013 provisional waiver regulations.Essentially, the unlawful presence waiver has now been expanded to include preference category cases, which also means that employers will now be able to petition for undocumented employees.

The original waiver only waived unlawful presence for immediate relative petitions if the applicant could demonstrate extreme hardship to a U.S. citizen spouse or U.S. parent. After considering that the goal of preserving family unity would be a greater achieved by allowing for non-immediate relatives to file, USCIS expanded the waiver to include all immigrant petitions where the underlying visa is current. Qualifying relatives have also been expanded to include lawful permanent resident spouses and parents.

This new rule affects thousands of immigrants who have been living in United States without legal status based on their entry without inspection. The rule also benefits immigrants who entered the United States on non-immigrant visas, and then overstayed. Another significant change involving the stateside unlawful presence waiver is that it is now available for those who have outstanding removal orders or deportation orders which have not been executed by the immigrant’s departure. This may not apply, however, to individuals with in absentia orders of removal as they may later be found inadmissible for failing to appear at an immigration court hearing. Thus, the expanded I-601A waiver requires the careful processing by an experienced immigration attorney. For example, a Freedom of Information of Act (FOIA) request will be necessary in most of these cases, and non-attorneys are often unfamiliar with the procedures for obtaining such records.The new expanded I-601A regulations have also eliminated application of the “reason to believe” ground of inadmissibility as a basis for denial. The 2013 Rule prohibited issuance of an I-601A waiver if USCIS found a “reason to believe” the Applicant is inadmissible for health related grounds, fraud, smuggling, false claim to U.S. citizenship, a crime involving moral turpitude or controlled substance offense, etc. While this is a benefit for many, some individuals may find themselves approved for the stateside unlawful presence waiver, and then ultimately be denied entry into the United States after their consular interview overseas simply based on the fact that they did not know they had a separate ground of inadmissibility until they attended their consular interview in their home country. This is why it is imperative that those seeking relief under the stateside unlawful presence waiver retain the services of an experienced immigration lawyer to assist them in their case.

If you would like more information on obtaining a waiver for unlawful presence under I-601A, please contact Miami immigration lawyer Michael G. Murray, Esq. at (305) 895-2500 or visit our website at www.mmurraylaw.com.

Coronavirus update: We are safely open for business! USCIS is still accepting new filings for all applications. Our office is offering virtual consultations for new clients so that you don't have to come to our office in person. Call us to schedule your virtual meeting today.
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