Earlier this year, the Obama administration launched the new I-601A waiver program which permits those who entered without inspection, overstayed their visas and have accrued unlawful presence the ability to file and receive approval on an I-601A waiver from the United States then proceed to the U.S. embassy abroad to complete their cases. This process is preventing long term separations for family members while the alien relative travels abroad. It also provides some confidence that the alien relative will be approved unless there are aggravating factors that are not detected until the consular interview. Aggravating factors such as gang membership (tattoos or other evidence) and substance abuse (determined at the medical examination) can and often will cause a denial at the final interview, even after the I-601A waiver has been approved in the United States.
In order to qualify, the applicant must show there is an extreme hardship to the qualifying United States Citizen relative. Unfortunately, this “extreme hardship” standard does not have a straightforward definition. There are various levels of hardship to qualify a person to receive the waiver. Many of the waiver applications that have been submitted fall into a more general category which allows the adjudicating officers a great latitude of discretion in reviewing the waivers. For example, for a U.S. citizen who shows the extreme hardship is the loss of love, minor depression, loss of economic resources and perhaps lost educational opportunities abroad, the officer will have a difficult time finding the hardship. This is true, since so many of the waivers submitted to not reach a high level of hardship, such as a severe medical condition of the qualifying relative. For instance, two nearly identical cases with some hardship evidence may be submitted and one may receive approval and the second may not. There is no appeal process so the second applicant would need to reapply.
For those applicants who have any criminal activity, including DUIs (which show as traffic offenses) waivers may not be approved. Those applicants should follow the normal I-601 Waiver process and proceed abroad. Where an application for a waiver has been denied based upon past criminal activity, no matter how minor, applicants are urged to postpone reapplying until further guidance is provided by the USCIS offices. This problem is currently under review.
Processing times vary and are occurring seem to be averaging at about 4-6 months. The wait times abroad also seem to be relatively low at 2-4 weeks.
These cases can be extremely complex as it takes time to gather and determine what qualifies as proper supporting documentation. Additionally, meeting the criteria is not a guarantee that you will be granted a provisional waiver. A qualified immigration attorney can guide you through the process.
If you are considering filing a waiver application you should seek legal advice first.