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Immigration Update: How the Unlawful Presence Waiver Has Been Expanded to Help More Immigrants Obtain Their Residency

| Aug 20, 2016 | Firm News

Immigration issues can be overwhelmingly stressful and difficult to understand – and the stakes couldn’t be higher, particularly when you’ve been in the country illegally and have the ability to apply for residency. In this blog entry, we’ll break down one possible solution. It’s known as the I-601A Unlawful Presence Waiver.

The I-601A Unlawful Presence Waiver was first designed to help people who were restricted from re-entering the United States because of what is known as an “unlawful presence bar.” To put this into plain English, the “unlawful presence bar” means that if you were unlawfully present (illegal) in the country for more than 180 days, it could be up to 10 years before you can legally re-enter.

The I-601A waiver could allow you to waive these restrictions. The waiver has been modified as of August 29, 2016. Today, we’ll explain these changes and what they could mean for you and your family. If you have any questions or believe you might be eligible for this special waiver, please don’t hesitate to contact us immediately.

  • Expanded Eligibility

If you weren’t eligible for the unlawful presence waiver previously, you may be eligible now. Under the new provisions, you need to prove that you have an immediate family member who is a United States citizen or permanent resident. Immediate relatives are spouses, children (under 21 years of age and unmarried) and parents of citizens who are 21 years of age or older. You can either get approval through an I-130 (petition for alien relative), which proves that you have established your familial relationship to a US citizen or Lawful Permanent Resident (LPR); or an I-140 (immigrant petition for alien worker), which would allow you to enter the country for employment purposes. You could also be eligible if you happen to win the Diversity Immigrant Visa lottery program.

The waiver also requires that you prove the existence of a spouse or parent—one who is also a citizen or permanent resident—who would experience “extreme hardship” if your application were denied. Whether that hardship extends to financial concerns, a medical condition, or something similar, be prepared to give ample evidence to support your claim. We can help you through this process!

  • Removed Grounds of “Reason to Believe”

USCIS used to automatically deny Unlawful Presence Waiver applicants with criminal backgrounds, but that policy ended in 2014. Even so, applicants were still commonly denied based on a “reason to believe” they might be inadmissible based on past criminal behavior (or other grounds). The “reason to believe” grounds have been eliminated.

This change should make the application process easier for people who would otherwise be denied based on minor criminal violations. Your case can still be denied on other grounds as a matter of discretion, but an experienced immigration attorney can help guide you through the process.

  • Guidelines for those with Orders of Deportation (I-212 Applicants)

If you were deported or issued an order for removal, you can apply for an I-212, which gives you permission to reapply for admission into the US. Under the expanded guidelines, you can file an I-601A once the I-212 is approved. If you left the country voluntarily, or if proceedings are still open, you are restricted from filing the waiver. Without a final order for removal, the case must be administratively closed. This sounds complicated – but the bottom line is that, even if you’ve been deported or ordered removed, this process may enable you to adjust your status – or avoid being deported in the first place!

  • Interview Scheduling

USCIS previously required all initial immigration interviews at the consulate to be scheduled for January 3, 2013 or later in order to be eligible for the I-601A. This requirement has been removed, so the date of your immigration interview no longer matters for the purposes of qualifying for this waiver.

  • Clarification on Reinstatement

When you are deported from the country and then you return, you could be deported again without a hearing. This process is called reinstatement, and it only requires the initial order for removal to be re-issued. The previous Unlawful Presence Waiver guidelines were vague in regards to reinstatement, but they have been clarified to say that you can only file the I-601A if your removal was officially reinstated.

While the changes are generally positive, the process of obtaining this Waiver is highly complicated. At Rotella & Hernandez, we understand that you want to remain in the U.S. and obtain lawful status—and making this happen is our top priority. Please contact us today if you’d like to learn more!

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