UPDATE: The law has been passed as of January 2013.  Please go to our new Blawg post about provisional (stateside) waivers.

On April 2, 2012 in the Federal Register, the Department of Homeland Security published a proposed rule for stateside hardship waivers.  People who cannot get a green card within the US have to go outside the US to their home country’s consulate.  For many people, this means filing a waiver application – a special application to “forgive” the fact that they were out of status when they were in the United States.  Under the current law, these waiver applications must be filed outside the US, and the applicant has to wait for a long time until USCIS makes a decision.  Under the new proposed rule, people would be allowed to file for the waiver from within the US, meaning if they get it, they only have to go abroad for their visa interview.  That’s a matter of weeks, not months or years.  For more explanation, see our prior post on this issue.  


The new waiver is to be filed on Form I-601A.
Here’s a rundown of the proposed rule: (Caution: THERE IS NO NEW LAW YET!) 

• It is only available for spouses of US citizens.

• It only waives unlawful presence.  In most cases, this waiver is needed if someone entered the US illegally and has been here for more than 6 months.  If the person entered the US legally and overstayed, they do not need an unlawful presence waiver because the law automatically allows that person to get their green card on the basis of marriage to a US citizen.  See INA 245(c). You only get one chance to file an I-601A.   If you file it and withdraw it, it still counts as your one chance!
• It is NOT available (currently) if you are already in removal proceedings, or if you have a final order of deportation.
• If you are denied, you might be placed into removal proceedings.
• If you are denied, you are not allowed to ask for any reconsideration, and there is no appeal.

Clearly, there are some big problems with this scheme.  It’s frankly quite disappointing, as all of us immigration lawyers had high hopes that this would help thousands of mixed-status families who are hardworking, taxpaying, contributing members of American society and whose only sin was the illegal entry of one of the family members.  No one is asking for a free handout – we just think that if USCIS parrots family unification as a primary goal of the US immigration system, then its rules should actually unify families.

As a lawyer, I would be hard pressed to advise someone to file an I-601A if it becomes law as currently written.  First, it might make problems worse because my client could end up in removal proceedings.  I do not like that to happen on my watch.  Second, because there is no appeal, my client only gets one shot to get it right.  No other waiver application is so limited; there is no rational reason why this one has to be.  Third, it’s not available for those who need it most: for people who are already in removal proceedings.  There needs to be some compromise: either terminate or administratively close the removal proceedings to allow the alien to file a 601A, or allow them to file even if removal proceedings have started.

The scheme has to change.  Otherwise, it amounts to little more than election-year gamesmanship.

If you are in a mixed-status family, here are some practical things you can do now to make sure you can take advantage of this law:

• First, if your spouse entered the US illegally and you only have a green card, FILE FOR CITIZENSHIP as soon as you can.  Talk to a lawyer to make sure you are eligible and get it done.
• Second, if you are not actually married, GET MARRIED.  Immigration does not recognize a “common-law” marriage.  And if your spouse is picked up, or placed in removal proceedings, it can be very hard to get married.  Many detention facilities technically allow marriages, but they make it so difficult that it’s almost impossible.  If your spouse is detained, the last thing you want to do is worry about getting a marriage solemnized in a jail cell.
• Third, if any of your US citizen family members have any medical or mental health issue, get it documented NOW.  Do not throw away reports from your doctors, or school personnel.  These documents often help in preparing waiver applications.
• Fourth, and perhaps most importantly, talk to a lawyer before you file anything (including an I-130).  You need to know whether there are any other problems in your particular case.  If a 601A is not going to help you, it will hurt you, because you will wind up in removal proceedings.

If you are an immigration lawyer, advocate, or otherwise interested, I strongly urge you to send in comments, before June 1, 2012 to the Department of Homeland Security.  The rule is not final; it can be changed.  We have a chance to make it work in reality, not just in theory.

DATES: Written comments should be submitted on or before June 1, 2012. 
ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS– 2012–0003, by one of the following methods: 

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Email: You may submit comments directly to USCIS by email at [email protected]. Include DHS Docket No. USCIS–2012–0003 in the subject line of the message.

You can view the Federal Register notice here.