In March 2013, United States Citizenship and Immigration Services (USCIS) implemented I-601A, the modification of a law called provisional waiver of unlawful presence.
The intention of this legislation is to help undocumented spouses of U.S. citizens to apply for and receive a lawful permanent resident status without the need to leave the country.
The 1 million undocumented immigrants who, according to the Obama administration, qualified before March 2013 for I-601 (the old version of the law) did not apply due to the high risk of family separation.
By the end of 2013, USCIS received approximately 40,000 applications for I-601A, of which 60 percent were approved. The requirements are the same for both versions of the law, and serve the same amount of people.
As an immigration attorney, in my personal experience, only one-out-of-ten applicants that were eligible to file for a waiver abroad decided to go forward with the proceeding before March 2013.
Under the old law, the waiver had to be adjudicated after the applicant went to the U.S. consulate in his home country for a visa interview. The immigrants had to leave the United States and wait abroad for months or even years for the adjudication of their waivers.
If a waiver were denied, the immigrant would get stuck in his or her home country.
Per the modification of the law, an immigrant who entered illegally and is married to a U.S. citizen can now show that the U.S. citizen spouse will suffer extreme hardship if the undocumented spouse is denied status or is removed from the U.S. as a binding reason to legalize his or her status.
Extreme hardship can be determined by examples such as the conditions in the applicant’s country of origin, the economic impact of applicant’s departure, strong ties to the United States, school-aged children and health issues concerning the U.S. citizen.
The consequences of the old law were accurately described in a story by Jocelyn Duffy, which was published in El Tecolote in April 2013.
Patrick Piazza and Veronica Solis married in 2007 in San Francisco knowing that sooner or later they would be forced to separate. Piazza, who is a U.S. citizen, applied for a pardon for unauthorized stay for his wife. This required her to return to her home country to be screened through interviews and wait for approval or rejection. Rejection would have entailed a 10-year bar from entering the United States. Fortunately, Solis’ waiver was approved and she reunited with her spouse in the Bay Area, where they currently reside.
The level of uncertainty presented by the old proceeding created a barrier that only a few decided to cross.
At this time, I personally get to review 30 to 40 cases per month and more than 90 percent of the applicants decide to file the waiver through the I-601A proceeding.
Now if the waiver is granted, the immigrant has certainty to safely return to the United States after a quick interview at the U.S. Consulate in his or her home country. If the waiver is denied, the immigrant will not receive an immigrant visa through the petitioning U.S. citizen spouse.
What is more important, however, is that the immigrant will not be placed in removal proceedings, will not have to travel abroad and the family will not be separated.
Wilson Purves is an Attorney at law specialized in immigration. He is a legal adviser at the Mexican Consulate in San Francisco.