A Guide to the New I-601A Stateside Waiver of Unlawful Presence for Immediate Relatives of United States Citizens

On January 2, 2013, the United States Department of Homeland Security announced that illegal immigrants who are immediate relatives of United States Citizens (spouse, child between 17 and 21, or parent of a child over 21) but are unable to apply for a green card from within in the United States because they entered the United States without inspection and would be subject to a 3 or 10 year bar for unlawful presence if they departed the United States to apply for a green card at a United States Consulate in their home country, can submit a Form I-601A Application for a “Provisional Unlawful Presence Waiver” while they are still in the United States. The I-601A is available only to an individual whose sole basis of inadmissibility to the United States would be the 3 or 10 year bar for unlawful presence if they departed the United States. The Immigration Service will accept these applications effective March 4, 2013 from immigrants with approved immediate relative petitions.

The Old Rule

Until this year, an immigrant who entered the United States without inspection, a term that usually means simply walking across the border illegally, could not apply for a green card in the United States even if they were married to a United States citizen, except under certain rare circumstances. There was a special law first enacted in the 1990s called 245(i) that allowed many illegal immigrants to apply for a green card as long as a family or labor petition was filed for them before a certain deadline. The deadline was eventually set to April 30, 2001, and for that reason, the 245(i) law helps very few immigrants today. So, immigrants who were not eligible to file their green card applications in the United States were required to leave the country and apply for what is known as an “ extreme hardship waiver” at the Consulate. Very few immigrants willingly left the United States and their families to apply for a waiver in their home country because it could take more than a year for the application to be processed and as they would be stuck in the home country for 10 years if their waiver application was denied.

The New Rule

Under the new rule, the immigrant must still leave the United States, but they will only have to leave to attend an interview at the consulate in their home country if their extreme hardship waiver is pre-approved. Instead of waiting outside the United States for potentially more than a year for their waiver applications to be decided and risk not being allowed back for 10 years, eligible immigrants can now wait in the United States while they live with their family and eliminate the risk of not being allowed to return to the United States upon departure. This means that the time they will be required to remain outside the United States could be reduced to a couple of weeks or even days.

Why Should You Choose Getson & Schatz, P.C. to Represent You in Applying for Your Extreme Hardship Waiver

Brian Getson and Marco Pignone have practiced immigration law for a combined 30 years and have successfully represented multiple immigrants in applying for extreme hardship waivers under the old rule. We have demonstrated our ability to help immigrants from different countries get I-601 waivers approved to forgive unlawful presence, fraud, and various crimes. Through many years of experience with immigration waivers we have developed a comprehensive method of creating a record of evidence to ensure that our clients are given the best possible chance of getting their applications approved. Clients of Getson & Schatz, P.C. are assured to receive many hours of actual contact with their immigration lawyer and not simply a paralegal, secretary, or translator. Many law firms leave the actual work of preparing the waiver applications, evidence packages, statements, and reports, to employees who are not lawyers or lawyers who do not stay current in their knowledge of immigration law. The waiver applications prepared by Getson & Schatz, P.C. are prepared by attorneys.

The “Extreme Hardship” Test Applied to Waiver Applications

The legal standard for the I-601A waiver is the same as it is for an I-601 waiver under the old rule, and that is “extreme hardship.” There are decisions in immigration court cases from the Board of Immigration Appeals that define “extreme hardship” as being more than the normal hardship experienced by persons who are separated from their families. This means that simply filling out the form and submitting a brief statement claiming that the immigrant’s spouse and/or parent would suffer extreme hardship is likely to lead to a denial. To maximize the chance of winning our waiver cases, the lawyers at Getson & Schatz, P.C. spend many hours over the course of multiple days working directly with clients on their cases, writing lengthy affidavits often more than 10 pages long, and using expert witnesses such as clinical psychologists and doctors who work closely with our law firm to ensure our clients’ cases are presented in the most thorough and professional way. Legal memorandums explaining the client’s case in light of applicable law, regulations, and court decisions can be utilized to help the Immigration Service officers deciding our cases to understand why each application should be granted.

Beware of Unethical Lawyers, and Non-Lawyers Unqualified to Practice Immigration Law

Many immigrants have been the victims of an unethical lawyer or non-lawyer (known as notarios in many Hispanic communities, translators or travel agents in the Chinese community) who do not know or understand the immigration laws and regulations, a very complicated field that is always changing. Anyone offering a “guarantee” or translators or travel agents claiming special relationships with immigration officials should be avoided. Obtaining approval of a waiver application requires a great deal of work and knowledge on the part of an experienced immigration lawyer who understands that the Immigration Service does not approve cases that are not well prepared with attention to detail. Hiring an unethical lawyer or a non-lawyer who is not qualified is likely to lead to a denial and thousands of dollars being wasted.