The Existing Regulation
A U.S citizen, who marries someone, who entered to the U.S unlawfully is faced with a difficult dilemma.
If the U.S citizen applies for permanent residence for his/her spouse, the spouse cannot receive permanent residence inside the U.S. The illegal spouse is forced to attend an interview at the U.S consulate in the country, where he/she is a citizen.
The moment the spouse steps outside the USA to attend the interview at the consulate he/she is not allowed to return to the USA for 10 years, unless the U.S citizen can prove that it would be an extreme hardship for him/her if his illegal spouse is forced to wait outside the U.S for 10 years. The method of proving that it would be an extreme hardship is by applying for a waiver of the law that forces a person to stay outside the U.S.A for 10 years.
This ten year bar only takes place, when the person actually leaves the USA.
At the moment the U.S citizen may only file the Waiver request at the interview. This results in the spouse being forced to wait outside the U.S.A for 4 to 6 months before a decision is taken by the Immigration Service as to whether it would be an extreme hardship for U.S citizen to wait 10 years, before the foreign spouse may return to the U.S.A. as a permanent resident.
This waiting period for a decision is extremely difficult for couples. There is the huge additional expense of paying for accommodation and food for the spouse waiting outside the USA. It becomes even more difficult, when there are children in the marriage and the wife/mother is waiting outside the USA. Who will take care of the children in the USA?
The New Regulations
U.S citizens will be allowed to apply for the Waiver BEFORE the unlawful spouse leaves the USA for the interview.
If the waiver application is approved before the interview, the spouse will be allowed to return to the USA within days of the interview, provided that there are no other issues that preclude the person from getting permanent residence.
The Test for Extreme Hardship
This has not changed. Unless a U.S citizen can prove that it will be an extreme hardship on him/her if the unlawful spouse is not allowed to return to the USA, the waiver application will be denied.
What is Extreme Hardship?
It is impossible to state exactly what extreme hardship means to the Immigration Service. Each case is decided on its own facts.
Extreme hardship includes, but is not limited to:
- The family ties in the USA of the citizen or LPR;
- U.S. citizen or LPR's family ties outside the USA;
- Conditions in the country of relocation and the qualifying relatives ties there;
- The financial impact of departure;
- Significant health conditions particularly, when tied to unavailability of suitable medical care in the country of relocation.
The New Regulations
There are approximately 150 pages to the new regulations.
From March 4, 2013 a person may apply in ADVANCE for the waiver. The form for the application, the Form I-601A has not been published yet.
The application may only be submitted if the relative petition (I-130) has been approved, the immigrant visa processing is pending (the fees for the immigrant visa processing must have been paid) and the interview must not have been scheduled at the consulate.
If the waiver application is approved, then a huge unknown is removed from the process.
If the waiver is denied, then it would be pointless to go to the interview and incur the 10 year bar by leaving the USA.
Remember, it is only when you leave the USA that the 10 year bar comes into effect. While you remain in the USA, the bar does not apply to you.
What will happen, if the Waiver is denied?
Immigration and Customs Enforcement (ICE) has its own enforcement priorities as to which cases will be placed in deportation proceedings. People who pose a danger to the public will be placed in deportation. There are other situations, where people may be placed in deportation proceedings and it is impossible to state with absolute certainty which cases could be referred to such proceedings.
The USCIS is unable to state how long it will take to adjudicate such cases because they have no idea as to the volume of cases that will be filed.
The USCIS fee for the I-601A waiver will be $585.00 plus $85.00 for fingerprinting.