Introduction and History of the I-601A
There are situations in which a person with a US citizen or permanent resident relative can be sponsored for permanent residence but cannot obtain that permanent resident status here in the US.
If a person who has been sponsored for permanent residence by a family member has lived in the US without legal status, in some situations that person must leave the US to become a permanent resident through that sponsorship. The process would then be completed at a US consulate, all of which are outside the US, probably in the person’s home country. If the person has been in the US over 180 days without legal authorization, leaving to the consulate subjects the person to a bar of 3 or 10 years before he or she could return to the US.
If the person has been in the US over 180 days without legal authorization, leaving to the consulate subjects the person to a bar of 3 or 10 years before he or she could return to the US.
This is called the 3- and 10-year bar, or the unlawful presence bars. When Congress amended the Immigration and Nationality Act in 1996 to create these bars, a waiver was added to allow people in that situation to seek to avoid the bars for the sake of family unity. Someone subject to the unlawful presence bars would need to show that his or her bar to returning to the US results in extreme hardship to a US citizen spouse or parent.
After the amendments in 1996 became effective, and prior to policy changes in 2013, a person eligible to become a permanent resident who was also ineligible to process for it in the US (a process called Adjustment of Status) would have to go to the US consulate to process the application, and would not be able to file for the unlawful presence waivers until after the consular interview.
This required a person to leave the US for the green card interview knowing that he or she would have to stay outside the US while the application for the waiver was being considered.
Changes in 2013 – The Waiver Could be Done Before Leaving
Then in 2013, the Obama administration announced that in certain situations, such as individuals being sponsored for permanent residence by a US citizen spouse, a person needing an unlawful presence waiver could begin filing for those prior to leaving for the interview at the US consulate.
It was a small change, just changing the timing of when it could be filed. But it was a change that had a huge impact on family unity and risk in the process.
At the time of the policy change in 2013, it was not unusual for families, including spouses of US citizens, to be apart for several months, if not years, waiting for the waiver application to process after the interview at the US consulate. In the event the application was denied, the family faced even longer separation while they continued to fight to bring their relative back.
It was a process with tremendous risk and significant time separated without knowing how long it would be before receiving a final decision on the process.
The change allowed for people needing to go to the consulate for immigrant visa processing to take the approved waiver with them, meaning in most cases the family would only be separated for 10-14 days generally. This of course assumes that there are no other issues in the person’s background, including most criminal record, deportations, other immigration violations, or the use of false documents or information.
Recent Changes – Expansion
As of August 2016, the Obama Administration has expanded the group of people this program applies to. In order to qualify, the person must:
- Be eligible to apply for lawful permanent residence, such as through family or employment sponsorship, diversity visa lottery selection, or through an approved petition for permanent residence in some other category.
- Start the process of applying for permanent residence through the US Department of State.
- Have a spouse or parent who is a US citizen or permanent resident.
- Prove that the qualifying relative would suffer extreme hardship in the event the person applying would not be able to become a permanent resident.
- Be in the US.
A person who has a criminal record, history of fraud or other issues that create a separate basis for creating a bar to being able to become a permanent resident may not be eligible to use this program. However, someone facing deportation or “removal” from the US may still be able to apply through this program under the recent changes.
In some situations where there is a final order of removal, deportation or exclusion, a person may be able to file for permission to become a permanent resident despite the order or removal, deportation or exclusion. This is a significant expansion of the program and it has become available to a broader group of permanent resident hopefuls.
If you are in the situation in which you otherwise qualify to become a permanent resident, but must process at the US consulate and have a deportation issue or unlawful presence in the US, give us a call at our Dallas, TX Immigration Law office. We can help you understand whether you qualify for the new program or not. If you do qualify, we can tell you how to navigate the process. If you don’t, we will tell you why.
Garry L. Davis is managing attorney for Davis & Associates, a boutique immigration law firm with offices in Dallas, TX. Garry graduated from the University of Texas School of Law and Brigham Young University. He is Board certified in immigration and nationality law by the Texas Board of Legal Specialization, and has been selected as a Texas Super Lawyer and for Best Lawyers in America. He served the American Immigration Lawyers Association as the Dallas immigration court liaison and as program co-director for a Texas chapter CLE conference held in Mexico. In addition to blogging on the topic of Immigration Law, Garry has frequently spoken on immigration issues for various organizations.
For more information, call us at 1 (800) 962-5286 for a complimentary consult in our Dallas, TX Immigration Law office.