On August 29, 2016, the new rule went into effect regarding the I601A Provisional Waiver process. We discussed the important changes here briefly a while back. Even lawyers are taking their time getting a grasp on the new changes, so for the layman, the new regulations can understandably still cause a lot of confusion out there.
Who Can Now Apply?
Perhaps the major change is that the I-601A process has been expanded to all classes of eligible immigrants. Previously, the I-601A was reserved only for Immediate Relatives of United States Citizens, which means a spouse, unmarried child (under 21), or parent. Now, someone does not necessarily have to be an Immediate Relative to apply. All family and employment preference based categories are potentially eligible. So, if you are a spouse of a green card holder, or even a sibling of a United States Citizen-and your priority date is now current or coming up–you may be potentially eligible.
Who is a Qualifying Relative?
However, one should not forget that there are two parts of the provisional waiver. You have to be an eligible relative BUT you must also demonstrate extreme hardship to a “Qualifying relative.” Only part of the qualifying relative equation has been changed. The intending immigrant must still demonstrate extreme hardship to a spouse or parent. However, whereas before, it had to be a US Citizen spouse or parent, extreme hardship may now be shown to a Lawful Permanent Resident Spouse or Parent.
So, in other words, as an example, a spouse of a green card holder can try for a provisional waiver if he/she can show extreme hardship to his/her permanent resident spouse. However, a sibling of a US Citizen cannot apply if he/she cannot show extreme hardship to either a United States Citizen or Permanent Resident Spouse or Parent. In that case, the sibling would be out of luck and have to take his/her chances with filing the traditional I-601 abroad.
The foregoing is just a simple example but it illustrates how a careful understanding of the new regulation is critical before entering into such an important process. The new rule is a welcome change and will help out a tremendous number of people who were previously left out in the cold. Nevertheless, it is not a cure-all, nor-and this can’t be overemphasized-does it mean that people can just file an I-601A and get their green cards. The preparation of a waiver is extremely arduous and there are no guarantees that USCIS will approve the petition.
The foregoing is general information/opinion only and does not constitute legal advice. It is not intended to be relied upon nor does it create an attorney client relationship.