Tag Archive for: waiver for immigration i 601

Many of my San Francisco and Sacramento clients have been asking me about the possibility of immigration reform. Obama has been expecting an immigration bill this year from the “Group of Eight,” a group of eight bi-partisan senators working together to create comprehensive immigration legislation. Senator McCain has stated that he expects the Group of eight to have reached an agreement on the path to citizenship as well as a system to aid and secure state border security.

The agreement entails a 13 year path to citizenship. What this entails: to get a green card it would take undocumented workers 10 years, and another three years to gain citizenship. Throughout this period of time, undocumented workers would have to pay a fine and back taxes as well as pass a background check. The fine has yet to be decided and is unclear at this time. Additionally, there may be an increase in the H-1B cap of 65,000.

Under this legislation no undocumented worker however, will be eligible for citizenship until the border is considered secure. To measure border security a commission would be created. The commission would be made up of officials named by state and federal leaders.

Who is in the Gang of Eight?
The includes:

• Sen. Marco Rubio of Florida
• Sen. Lindsey Graham, South Carolina
• Sen. Jeff Flake, Arizona
• Sen. John McCain, Arizona
• Sen. Robert Menendez, New Jersey
• Sen. Dick Durbin, Illinois
• Sen. Michael Bennet, Colorado
• Sen. Chuck Schumer, New York

One of the most frequently asked questions about I-601 Waivers we get in our Sacramento office is whether someone can apply for the I-601A provisional unlawful presence waiver if they have an order of voluntary departure.

The answer to this question depends upon whether the order of voluntary departure is outstanding or if it has been administratively closed and not recalendared.

Outstanding Order of Voluntary Departure

In short, someone with an outstanding order of voluntary departure is not eligible to apply for the I-601A provisional unlawful presence waiver. The instructions to the Form I-601A waiver specify eight circumstances where an applicant is ineligible to apply for the waiver. These include someone going through removal proceedings as well as someone subject to a final order of removal. This includes an order of voluntary departure.

Administrative Closure and Termination of the Order

If an applicant for the I-601A waiver is able to have the Immigration Court reopen the voluntary departure order and then close the case and terminate the order, the individual may become eligible for the provisional unlawful presence waiver.

When the rules for the provisional unlawful presence waiver were drafted, many commenters wanted the government to allow individuals under a voluntary departure order to be eligible for the waiver. However, after consideration of all the issues, the Department of Homeland Security decided to limit eligibility for the provisional unlawful presence waiver to only those individuals whose removal proceedings were administratively closed and have not been recalendared.

For cases that are not considered to be enforcement priorities, Immigration and Customs Enforcement (ICE) will typically exercise its discretion where appropriate and may move for administrative closure for certain voluntary departure orders. If the voluntary removal order is administratively closed, an individual should seek termination or dismissal of the proceedings with the help of a Sacramento hardship waiver attorney.

This article offers a detail description of Form I-601A which allows individuals to apply for the provisional unlawful waiver

Form I-601A: Application for Provisional Unlawful Presence Waiver

The USCIS finally released its Form I-601A allowing individuals to apply for the provisional unlawful presence waiver.

This new six-page form is critical to individuals going through the immigration process who may possibly be subject to a three- or ten-year ban from entering the U.S. due to accruing time in the country without proper legal status. U.S. citizen immediate relative family members who apply for the waiver can now know whether it is approved in the United States, alleviating lengthy wait times outside of the U.S.

There are four substantive portions of this form:

• Part 1: Information About Applicant. This part is fairly straightforward as you just enter information like your A-number, Social Security number, full name, address, and contact information. You will also need to enter your country of citizenship and information regarding your last entry to the U.S. Some sticking points could be listing your immigration status during your last entry to the U.S. as well as any criminal history.
• Part 2: Information About Immediate Relative Petition. You will have to enter information about an approved immediate relative petition (Form I-130 or I-360) and related immigration visa application. Without an approved immigrant visa petition, you may not be eligible for the waiver.
• Part 3: Information About Qualifying Relative. You need to provide information about a U.S. citizen spouse or parent who would experience extreme hardship if you are denied. Without a qualifying relative, you will not be eligible for the waiver.
• Part 4: Statement from Applicant. This is the critical section where you have to explain to the USCIS why your hardship waiver application should be approved. You should explain in detail reasons for the extreme hardship and detail how your family members will suffer. Examples of hardship may include medical reasons, severe psychological conditions, financial, a disruption in education and adverse country conditions. You should be as specific as possible and you must remember that you have to prove an “extreme” hardship.