The Obama Administration on July 22, 2016 published a final rule expanding I-601A provisional unlawful presence waivers for individuals inadmissible under INA 212(a)(9)(B)(i)(I), (II). This new rule, effective August 29, 2016, builds on DHS’s 2013 provisional waiver regulations. Under the 2013 Rules, immigrant visa (IV) applicants in the U.S. with six months or one year of disqualifying unlawful presence could for the first time seek an extreme hardship waiver of inadmissibility prior to departing abroad for consular processing.

Before implementation of the 2013 Rule, waiver applicants could expect to wait at least six months abroad while awaiting a decision on an unlawful presence waiver. By allowing IV applicants to submit their waiver application prior to proceeding abroad for their consular interview, the I-601A process significantly shortened separation from employment and family. With an approved provisional waiver, IV processing times at the Ciudad Juarez, Mexico, consular post typically takes approximately 1-2 weeks.

The 2016 Rule will expand the eligible pool of applicants in significant ways. Most significantly, employers for the first time in a generation - since 245(i) in December 2000 - will now have a meaningful opportunity to petition for undocumented workers.

Previously, only family-based immigrant visa beneficiaries could seek a provisional waiver. Now applicants under all visa categories may take advantage of the provisional waiver process:

  • I-130 Immediate relatives
  • I-130 Preference-based family members
  • I-140 Employment based immigrants
  • Diversity “visa lottery” immigrants
  • I-360 special immigrants

The eligible group of qualifying relatives for extreme hardship has also been expanded. Previously, immigrant visa applicants could only establish I-601A eligibility based on “extreme hardship” to a U.S. citizen spouse or parent. Now, under the expanded regulations, I-601A applicants may request a waiver based on hardship to both a spouse or parent who is either a U.S. citizen or U.S. lawful permanent resident. The 2016 Rules are a major step forward for undocumented individuals in the family based categories married to permanent resident spouses. Thanks to the new rules, these families can now pursue an I-601A waiver and minimize lengthy separation from their jobs and families.

What could be overlooked in the new regulations is the critical inclusion of employment based visa categories, a policy decision which will now allow employers to petition for undocumented workers and thereby positively reduce America’s undocumented population. Under current priority dates, adult nationals of Mexico who are unmarried and unable to benefit from a spouse petition must wait at least two decades to benefit from a visa petition filed by a U.S. citizen or permanent resident parent. Given the practically endless waiting period, the I-601A program holds little meaningful hope of legalizing a non-citizen from Mexico in a reasonable time frame.

However, a national from Mexico need only wait about one year under the current visa bulletin to benefit from a skilled worker petition filed by an employer. That worker may then pursue an I-601A waiver instead of the I-601 normal hardship waiver that would require the applicant to spend months abroad causing hardship to himself, his employer, and his family. Thanks to the expanded pool of qualifying relatives to include legal resident and U.S. citizen spouses and parents, it appears immigrants with unlawful presence issues, particularly nationals from Mexico, may now have a fighting chance at U.S. residence.

The linchpin to all of this is the employer willing to file an employment-based petition. As a result of I-601A expansion, the employment-based third preference petition has emerged as the last best chance for many undocumented Mexican nationals, many of whom have U.S. citizen or legal resident parents, and many of whom are either unmarried, widowed or divorced, with no U.S. citizen or legal resident spouse to petition for them. The 2016 Rules mark a critical opportunity for undocumented workers to obtain legal resident status in a reasonable period of time, and not a quarter century from now.

Beyond the 2016 Rules’ eligibility expansion, the new I-601A regulations have eliminated application of the “reason to believe” doctrine for separate grounds of inadmissibility. The 2013 Rule prohibited issuance of an I-601A waiver if USCIS found a “reason to believe” the Applicant is inadmissible inter alia for health related grounds, fraud, smuggling, false claim to U.S. citizenship, a crime involving moral turpitude or controlled substance offense. In the experience of many practitioners, these reason to believe findings were erroneous and could be easily overcome at a consular interview. However, the Applicant would have to proceed under the normal I-601 waiver process after a consular interview, necessitating needless travel abroad and lengthy separation from work and family. Under the 2016 Rule, USCIS will not undertake a reason to believe analysis, but will instead permit the Applicant to sort out these separate grounds of inadmissibility at the consular interview.

Also of note, the 2016 Rules will also allow non-citizens in the United States under a non-executed final removal order to seek a waiver of prior removal inadmissibility while in the United States prior to filing the I-601A. Under the expanded rules, a non-citizen may file an I-601A waiver upon favorable adjudication by USCIS of a stateside I-212 waiver of a prior removal order.

Unfortunately, I-601A expansion does not solve "permanent bar" inadmissibility. Non-citizens with more than one year of accrued unlawful presence who have subsequently departed the U.S. and unlawfully returned, or who have unlawfully returned after execution of a removal order, are inadmissible for ten years, which must be spent outside the United States. Inadmissibility for unlawful reentry is not subject to waiver.

The new I-601A rule amending 8 CFR 212.7(e) can be found at 81 Fed. Reg. 50244 (Jul. 29, 2016).