I-601A Provisional Waiver

Secretary of Homeland Security Janet Napolitano announced early in January 2013 that, on March 4, 2013, a new rule change will reduce the time family members have to spend abroad when applying for a Green Card.

Some Green Card hopefuls are able to apply for their Green Cards while remaining in the U.S. This usually happens when the Green Card applicant is currently present in the U.S., he or she has an immigrant visa immediately available, and he or she has lived in the U.S. legally with a current nonimmigrant visa. If the Green Card applicant is not eligible to adjust his or her status while remaining in the U.S., he or she has to return to the country of origin to interview for the Green Card. If he or she has been living in the U.S. without permission, there can be 3-year and 10-year bars, which are imposed as penalties for unlawful presence and prevent an immediate return to the U.S. Under the new rule, traveling back to the country of origin will continue to be required, but the time away from family in the U.S. will not be as long as it could to be.

This is what USCIS Director Alejandro Mayorkas has said about the new rule:

"The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this rule achieves. The change will have a significant impact on American families by greatly reducing the time family members are separated from those they rely upon."

Change to Form I-601A

The new rule will create a new Form I-601A, the Application for Waiver of Grounds of Inadmissibility. Form I-601A is filed by a Green Card applicant who is an immediate relative of a citizen, is not able to adjust status in the U.S. and has remained in the U.S. unlawfully for more than six months.

This waiver is needed so that the Green Card applicant is not penalized for the unlawful presence. Current law states that this waiver cannot be filed within the U.S. It has to be filed while the Green Card applicant is in his or her home country. This inevitably prolongs the Green Card applicant's time away. Those who do not qualify for the new provision will continue to file under the old process Form I-601. The new provision will allow some Green Card applicants the permission to file Form I-601A before departing the U.S. for the Green Card interview.

Who Is Eligible for the New Form I-601A Rule?

The following are the eligibility requirements that a Green Card applicant must fulfill in order to File Form I-601A before departing from the U.S.

• The Green Card applicant must be over the age of 17.
• The Green Card applicant must be an immediate relative - a spouse, a child under 21, or a parent - of a U.S. citizen.
• The Green Card applicant must have an approved Form I-130.
• The Green Card applicant must not have had a Green Card interview scheduled before January 3, 2013.
• The Green Card applicant's only setback must be his or her unlawful presence. In other words, he or she cannot have other problems that could prevent a return to the United States.
• The Green Card applicant must be able to demonstrate that without the waiver and the reduction of time away, his or her family in the U.S. will experience extreme hardship.
• The Green Card applicant must have all removal proceedings administratively closed.

Any Green Card applicant who is seeking to file Form I-601A under the new rule is required to notify the Department of State's National Visa Center.