New Provisional Waiver -- I-601A. Key for EWI I-30 Processing

The long awaited issuance of the state-side 601A waiver is over! The new regulations go into effect 04 March 2013. This is great news to many individuals waiting for 601 waivers in order to proceed with their I-130/I-485 processing packages.

History

Perhaps a brief explanation is order for the rest of us! Many immigrant family members find themselves with a serious problem. They realize that, although they qualify for sponsorship by an LPR spouse, because they entered the country illegally, they are no allowed to convert from non-immigrant status to LPR status without first obtaining a waiver (called an I-601) allowing them to be forgiven for entering, and remaining in, the country illegally.

Living in the US illegally triggers a 3 or 10 year bar, depending on how long you remained here illegally (<1 year = 3 year bar; >1 year = 10 year bar). You cannot be sponsored until you have spent that time outside of the country. In order to avoid the "bar", and immigrant must file an I-601 "waiver" form with the consulate in their home country. Note the location of filing -- the consulate in his/her home country (although this recently changed to allow stateside filing of the forms, the process for the immigrant was still the same). Under a standard 601, An immigrant with a 3 or 10 year bar is required to leave the country after filing an I-601. The term for this is "consular processing." If the immigrant can show extreme hardship, the bar is lifted, and the immigrant may re-enter the country legally. It can take anywhere from 6 to 8 months for a determination to be made on an I-601 application -- and the entire time, the immigrant must wait in their home country.

For many years, there has been a great cry to have the I-601 process modified. Family members (specifically, spouses of US Citizens, children, and parents)have been sent home waiting for 601 waivers that have taken years -- effectively destroying the family or causing terrible problems. The USCIS has studied the problem for some time, and determined that allowing the illegal immigrant to remain in the country during the 601 waiver adjudication period would not unduly burden the USCIS system.

Therefore, beginning in March, illegal immigrants whose only problem is their status in the country at the time they filed their I-130/I-485 package are elligible for expidited, in situe processing of their I-601. The new form allowing this is called an I-601A. The immigrant does not have to leave the country until the waiver is approved -- and then he/she travels to his/her home country, retrieves the I-130/I-601A visa and returns home the next day. No (or minimal) delay!

This is a tremendous breakthrough for our clients, and for millions of undocumented, but otherwise eligible immigrants to become legal LPR and eventually citizens.

Do you need an immigration help? Are you here illegally and would like to convert?Call us immediately and let us stop the clock and review the case before your loved one is shipped out-of-country! With the new I-601A provisisons, you may qualify for preferred processing and get a work visa or legal documents much more quickly that you imagined!

S

Sean R. Hanover, Esq
HanoverLawPC.com
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Clarification on Double EWI -- follow on to the post from June 2012

I was contacted by a fellow practioner today regarding double EWI's. She had an excellent question, and I thought I would display my answer here.

You are right about the need to accrue 1 year unlawful presences before you’re really “in the soup” with a double ewi. The catch-22 is that if you cannot prove the time you entered and left, the presumption is that you did accrue the requisite time and the double ewi becomes a bar. Fancy, eh? Wait until they pull that on you at court!

It usually goes like this…

Client stopped by police for driving on expired tags (or whatever)
Asked when she came to the US – she says 2001.
ICE later interviews her and she tells them she has been going back and forth across the border “for years”.
The last time she crossed was in 2003 when she decided to “stay for good…too dangerous to make the crossing anymore.”

Uh oh.

Presumption is that between the first EWI in 2001 and the last known EWI in 2003, she has accrued more than a year and…poof.

The very absence of dates gives rise to the problem, and by definition, an EWI often does not have specific dates. Defense cannot rebut the presumption and client get’s nailed.


-- In terms of DACA, though, I would be less concerned. An 821D is a form of deferred disposition – that means that the government already knows that it has the right to bar or “toss out” all the applicants; it is choosing not to enforce the rules only in so much as it promises not to pursue those people who register and are approved (selective non-application of appropriate law). As such, full disclosure is in order (lest the state say you are lying), and it should be okay (presuming EWI’s are the only problem).

Outside the context of DACA, always presume a double EWI is terminal to almost all forms of relief (except asylum based) unless there is definitive proof it is not (catch and release; multiple EWI’s in a single day, or other bizarre non-normative operations).

It should be noted that frequently, there is little that is guaranteed in a double EWI case. Many clients like to know the "odds" of success -- a common, and perfectly acceptable question. In double EWI cases, the odds are not great, and often rely more on the disposition of the immigration judge and prosecutor then anything else. However, a good lawyer can develop a compelling narrative and ensure every possible opportunity to stay is developed.

Call us today to discuss your case. WE CAN HELP. However, the longer you wait, the riskier it becomes when you are finally brought before an immigration judge.

S

Sean R. Hanover, Esq
HanoverLawPC.com
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