The HMA Law Firm - Immigration & Criminal Defense Lawyers

Call: 703.964.0245

  • Home
  • Our Team
  • Practice
    • Immigration >
      • Employment-Based Immigration >
        • The H-1B Visa
        • Investor and Intracompany Transfers (E & L Visas)
        • PERM Labor Certification >
          • Cross Chargeability
          • EB-5 Green Cards
      • Marriage & Fiancé Visas >
        • Special Service for Servicemen
        • Marriage Interview Questions
        • The I-751 Good Faith Waiver
        • Evidence for Filing an I-751
        • My I-751 Was Denied: Now What?
        • Same-Sex Marriage Immigration Issues
        • New 90 Day Rule
      • General Immigration >
        • Filing a FOIA from USCIS
        • Form G-639: How to Complete
        • Re-Entry Permits
        • TPS >
          • More on TPS
          • SYRIA TPS
          • TPS Yemen
        • U Visas
      • Legal Victories
      • How To Choose The Right Immigration Lawyer
      • Waivers (I-601/I-601A) >
        • Drunk Driving (DUI/DWI) and I-601/I-601A Waivers
      • Citizenship >
        • N-648 Medical Waivers
        • Naturalization Pitfalls
        • The Civics Test for Naturalization
        • Exceptions for English Test
        • Criminal Convictions and Naturalization
      • Mandamus: It's Taking Too Long >
        • Mandamus: What to Think, What to Expect
        • How an Immigration Writ of Mandamus Works
        • Petition for Hearing on Naturalization
      • Deportation Defense >
        • Overview of Removal Proceedings
        • Deportation: Preventive Maintenance
      • Deferred Action (DACA) >
        • To Lawyer Or Not To Lawyer
        • Applying for a Social Security Number
    • Criminal Defense >
      • Traffic Offenses
    • Learn >
      • Immigration In A Nutshell >
        • The Visa Bulletin and Family Immigration
      • Criminal Immigration Law 101 >
        • Know Your Rights
      • Eligibility for Citizenship >
        • Citizenship versus Naturalization
        • Why Become a Citizen?
  • Consult/Pay Fees
  • Testimonials
  • Careers
  • Blawg
  • En Español
    • Accion Ejecutiva
    • El Interdicto Temporal
    • Buscar Detenido
    • Reforma Inmigratoria
    • Papeles Por Los Indocumentados

The HMA Law Firm Blawg

    Question? Contact a lawyer now!

Submit

New Proposed I-601A Stateside Hardship Waivers: Some Initial Thoughts

4/2/2012

75 Comments

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

http://www.hmalegal.com/2/post/2013/01/provisional-waivers-are-here-at-last.html




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 uscisfrcomment@dhs.gov. Include DHS Docket No. USCIS–2012–0003 in the subject line of the message.
You can view the Federal Register notice here.
75 Comments
    DISCLAIMER: If a blog post you read here contains case results, be advised that case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.

    Authors

    Sharifa Abbasi, Esq.
    Hassan M. Ahmad, Esq.
    Humza Kazmi, Esq.
    Faisal Khan
    ​Valeria Prudencio
    Carly Stadum-Liang, Esq.

    Archives

    September 2020
    August 2020
    July 2018
    June 2018
    April 2018
    March 2018
    February 2018
    January 2018
    December 2017
    November 2017
    October 2017
    September 2017
    July 2017
    June 2017
    May 2017
    April 2017
    March 2017
    February 2017
    January 2017
    December 2016
    November 2016
    October 2016
    September 2016
    August 2016
    July 2016
    June 2016
    May 2016
    March 2016
    February 2016
    January 2016
    December 2015
    November 2015
    August 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    January 2015
    May 2014
    April 2014
    January 2014
    December 2013
    November 2013
    October 2013
    September 2013
    August 2013
    July 2013
    June 2013
    May 2013
    April 2013
    March 2013
    February 2013
    January 2013
    December 2012
    October 2012
    September 2012
    August 2012
    July 2012
    June 2012
    April 2012
    January 2012
    December 2011
    August 2011
    March 2011
    February 2011
    July 2010
    April 2010
    March 2010
    February 2010

    Categories

    All
    Appellate
    Asylum
    CBP
    Citizenship
    Constitutional Rights
    Criminal
    DACA
    Deportation
    Family
    Framing
    General
    H 1B
    H-1B
    Hma Law Firm
    Immigration
    Immigration Policy
    Immigration Reform
    International
    Interns
    Muslim Ban
    National Security
    Politics
    Removal
    Syria
    Tanton FOIA Lawsuit
    Trump
    Waivers

    RSS Feed

Quick Links

  • Our Team
  • Practice Areas
  • Executive Action
  • Consult

Contact Info

8133 Leesburg Pike, Ste 801
Vienna VA 22182

Tel:  703.964.0245

Fax: 703.997.8556
Email: info@hmalegal.com

Subscribe to the HMA LawFeed

Picture

​Pay Fees Here

Book you consult online by clicking on this link now!

©2009 - 2021 by Hassan M. Ahmad. All rights reserved. No portion of this website may be copied or reproduced for any purpose without express written permission.

Photos used under Creative Commons from Beshroffline, Thorne Enterprises, alex-s, swanksalot, 401(K) 2012, hyku, Gage Skidmore, Gage Skidmore, michaeln3, Antony J Shepherd, Korean Resource Center 민족학교, Don Fulano, lewebafricain, Images_of_Money, Lord Jim, Kevinth Nunez, Joe Crimmings Photography, Cohen.Canada, Thane Eichenauer, Gage Skidmore, CGP Grey, digitalshay, anokarina, Debbie Ramone, slightly everything, loop_oh, aaron_anderer, U.S. Marshals Service, tsuacctnt, Andrew Feinberg, Official U.S. Navy Imagery, Soggydan, Keith Bacongco, photosteve101, Emery Co Photo, futureatlas.com, david_terrar, weiss_paarz_photos, juanktru, Anh Le Tran's Photogphy, Amanda M Hatfield, IcronticPrime, Fibonacci Blue, blvesboy, Carl Montgomery, zappowbang, khawkins04, kennethkonica, opensourceway, Supernico26, mynameisharsha, JBrazito, Glyn Lowe Photoworks, Justin A. Wilcox, Wesley Fryer, MAClarke21, khalid Albaih, Chairman of the Joint Chiefs of Staff