Beginning in March 2013, the I-601A provisional waiver has helped many families avoid long separations from loved ones and obtain much-needed green cards for alien relatives. Under the old system of the I-601 extreme hardship waiver, and alien relative who entered the United States without inspection (illegally), would need to travel to his/her foreign country and apply for the waiver of unlawful presence while abroad. The wait time for a decision could last a few hours or many months, and during that time, the alien would stay outside the US and oftentimes separated from the family in the United States.
Under the I-601A unlawful presence waiver, the alien can apply for the waiver while in the United States. If the waiver is approved, the alien attends an interview in the foreign country and returns to the US within a week or so.
We have represented many I-601A clients over the last year, and I’ve met with several more that I determined we’re ineligible for the I601A. As is the case with many aspects of immigration law, rumors and inaccurate information circulate throughout immigrant communities, and one of the biggest misconceptions regards who can qualify as a qualifying relative for I-601A purposes.
To successfully apply for an I-601A unlawful presence waiver, the applicant must convince US Citizenship and Immigration Services (USCIS) that it would cause the alien’s qualifying relative extreme hardship if the alien is not permitted to live in the United States as a permanent resident. Under the I-601A provisions, a qualifying relative must be a spouse or parent of the alien seeking to obtain permanent residency. The qualifying relative must be a permanent resident (green card holder) or US citizen. Therefore, if alien has a US citizen son (over 21 years old) who wants to petition for the alien to obtain permanent residency, the alien cannot file an I-601A based on extreme hardship to the US citizen son. The alien would need to have a permanent resident or US citizen spouse or parent to act as the qualifying relative.
The rules for the I-601 waiver, which is filed at the consulate, has different rules for who qualifies as a qualifying relative. Under some circumstances a child may act as the qualifying relative. This subtle discrepancy is the likely cause of the confusion.
If you are considering an I-601A waiver and want an experienced immigration attorney to assess your case’s viability, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you during a confidential appointment and help you better understand the process, your options, and likely chances for success.
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