Friday, January 6, 2012

Today USCIS announced that it intends to change the I-601 waiver process. The spouse or child of a US citizen will be able to file the I-601 from within the US for unlawful presence grounds of inadmissibility only (INA 212(a)(9)(B)(v)) and have a decision in hand before proceeding to the consulate abroad.

The announcement makes clear that misrepresentation and criminal history will not be waived under this procedure and applicants with these grounds of inadmissibility must apply at the consulate as they do currently. The new procedure will also not apply which the qualifying relative is a permanent resident or when the qualifying relative is a US citizen fiancé (e). Such applicants will also still need to apply at the consulate.

There is no comment on whether applicants present in the US who enter into this process will be eligible to apply for an employment authorization document, but the presumption is that they will not.

The program is NOT effective immediately. No word on when the program will become effective, but response to the news story suggests that the Obama Administration may have a battle ahead to implement this new program. It is unknown whether the government will leave the current process untouched until the new program is implemented.

It is important to note that this is not a new law. This is a change in procedure. The change does not increase the number of people who were already eligible to apply for a waiver of inadmissibility. In fact the change increases administrative compliance with the immigration statutes as they state that the waiver should be granted if denial “would be” an extreme hardship to the US citizen relative. This wording implies that the waiver is intended to avoid the extreme hardship of family separation. The change in procedure will improve the government’s ability to carry out this Congressional intent.

This is not an “amnesty”. In the current immigration debate, the term amnesty is often used to mean that the majority of illegal immigrations would be allowed to legalize and get a green card by filling out a form and maybe paying a fine. This is nothing of the sort. Only the spouses and children of citizens will be eligible and they must still prove extreme hardship to those US citizens if the waiver is denied. That is a discretionary decision, meaning not everyone who presents a case will be approved. This is not a simple matter of filling out a form and paying a fine. And even if you are approved, you still have to depart the country and submit to review by the consulate.