I am not ready to jump on the I-601 bandwagon.
I am not against streamlining the permanent residency application process.
I am not against promoting family unity.
I am not against revamping the unlawful presence bars.
Rather, I am opposed to the premature applause for the current I-601 proposal.
My reasoning is simple.
Mere statements of vague support do not constitute true immigration reform. Especially those emanating from the president and other presidential candidates.
From Gingrich to Obama to Rubio, the track records do not merit blind loyalty.
I am disappointed, though not surprised, by the exaggerated endorsements of the president’s recent I-601 proposal by far too many immigrant advocates, political pundits, and news media outlets.
For example, just a few days after the I-601 proposal was announced, one immigration spokesperson claimed, “If the administration’s proposal goes through . . . it will be easier for families to avoid these bars by applying for family unity waivers.”
A few days later, the Los Angeles Times added, “The Obama administration is proposing to make it easier for illegal immigrants who are immediate family members of American citizens to apply for permanent residency.”
Such misstatements have been common throughout the internet and media channels.
These political half-truths do not serve the best interests of immigrants.
This absence of critical analysis plays into the public relations ploys of political candidates – whose comments are aimed, first and foremost, at winning votes from immigrant communities.
With the presidential election around the corner, immigrant supporters cannot afford to overlook this might be just another political stunt.
The Fine Print Of Provisional Unlawful Presence Waivers
As a permanent residency and green card lawyer, I’ve learned when it comes to immigration reform, the devil is in the details.
The fine print always trumps lip service.
Here’s the current reality.
- The law is not being changed.
- Extreme hardship is still the litmus test.
- Approval is still contingent on a favorable exercise of discretion.
- Only a procedure is being changed.
It’s true the proposed change will help some immigrant families.
But it could also negatively affect others.
To grasp how such harm might occur, assessing the fine print is essential.
Understanding I-601 Inadmissibility Waivers
Let’s start with the basics.
The Inadmissibility Bars
Under current law, many undocumented immigrants, seeking to become green card holders, must return to their home country for their permanent resident interviews. This is known as consular processing.
If they have been unlawfully present in the U.S. for 180 days, once they leave the United States, they are inadmissible for three years. This means they are subject to a three-year re-entry bar.
If they have lived here unlawfully for one year, and they depart, however temporary, they are subject to a ten-year re-entry bar.
Seeking Green Cards Via Consular Processing
This aspect of the green card process places many immigrants in a Catch-22 situation.
They must leave the U.S. to interview for their green card abroad. However, as soon as they leave, they are barred from re-entering the U.S. for three or ten years.
They can seek forgiveness for living here without authorization. At present, this is done by filing an application for an I-601 waiver of inadmissibility at the consulate in the applicant’s home country.
This is where the proposed change fits.
Under the new proposal, undocumented immigrants who are immigrating via a U.S. citizen spouse or parent would be allowed to seek a provisional I-601 waiver while still living in the U.S.
Why It’s Called A Provision Family Unity Waiver
A provisional unlawful presence waiver will not become a full waiver until the immigrant departs from the United States, and appears at his or her immigrant visa interview at an Embassy or consulate abroad.
Based on the provisional waiver and other evidence, if the consular officer determines the immigrant is admissible to the United States, he or she will be granted a full unlawful presence waiver.
Does this mean the government can deny an application abroad based on insufficient evidence of hardship after having provisionally approved it in the U.S.?
Sounds like double jeopardy.
There was no indication, when the early announcements about allowing immigrants to file I-601 waiver applications inside the U.S. were made, the approvals would be provisional and subject to a second review.
Does Provisional Approval Grant Any Permanent Benefits?
The proposed regulations state approval of a provisional unlawful presence waiver will not:
- Confer any legal status
- Protect against the accrual of additional unlawful presence
- Authorize an immigrant to enter the U.S. without securing a visa or other appropriate entry document
- Convey any interim benefits (e.g., employment authorization)
- Protect immigrants from being placed in removal proceedings or removed from the United States
Provisional Waivers: Potential Traps For The Unwary
Now, let’s move into some of the nuanced details.
Who Qualifies For The Provisional I-601 Waivers?
Only immigrants who can prove their U.S. citizen spouse or parent would experience extreme hardship if the immigrant is not allowed to re-enter the U.S. citizen.
The proposal excludes all beneficiaries of family-based visa petitions filed by lawful permanent residents.
LPR spouses and children are omitted from the new provisional waiver procedures. They are only allowed to seek I-601 waivers through the regular process.
In my view, by failing to include these relatives of lawful permanent residents, the proposal misses at least 50% of those who are negatively affected by the three and ten year bars.
(As an aside, I’ve wondered why undocumented immigrant parents, whose children are adult U.S. citizens, are entirely excluded from obtaining I-601 waivers. They would still have to prove extreme hardship exists. This limitation seems to imply our government long ago bought into the anchor babies rhetoric.)
One And Done: The Provisional Waiver Application Process
I-601 denials cannot be appealed.
In addition, when I-601 waiver applications are denied, immigrants do not have the right to seek motions to reopen or reconsider the USCIS decision.
One and done.
So is any post-denial action available to losing applicants?
From The Mouth Of USCIS
A USCIS decision to deny a provisional unlawful presence waiver is not subject to administrative appeal.
The USCIS decision is discretionary and is not a final agency action subject to judicial review, since its’ decision is without prejudice to the alien’s ability to seek a waiver from USCIS through the consular immigrant visa process.
Unfortunately, this double-speak (not final but no appeal) is not immigrant-friendly.
As noted above, when provisional waiver requests are denied, immigrants can apply for a waiver through the regular I-601 process.
USCIS reserves the authority to reopen and reconsider its decision to approve or deny a provisional waiver at any time.
This is not surprising.
Yet, if the government doesn’t realize its mistake in denying a waiver request, how is the immigrant supposed to notify them?
Immigrants cannot ask, after all, to reopen or reconsider the denial.
What Happens If An I-601 Application Is Withdrawn?
Immigrants will be allowed to withdraw their provisional waiver applications at any time prior to a final decision. Once withdrawn, the case will be closed.
New applications will not be permitted.
One and done.
Will Unsuccessful Applicants Be Placed In Deportation Proceedings?
The proposed regulations state USCIS does not envision initiating removal proceedings against immigrants whose provisional waiver applications are approved.
I hope not.
What about the denials?
For denials, USCIS will follow policies in effect at the time of adjudication whether to begin removal proceedings against the applicant.
In terms of deportation defense, this uncertainty cannot be minimized.
It places immigrants in a tenuous position.
Consider what could happen if you submit an application, believing it demonstrates extreme hardship, but the government disagrees.
Well, you have just told the government that you’re living in the United States without permission and provided them with information needed to begin deportation proceedings against you.
In the proposed rule, the government notes the provisional inadmissibility waivers “may encourage individuals to take affirmative steps to obtain an immigrant visa to become an LPR.”
Many immigrants who will not qualify for the I-601 hardship waivers will be part of this group – a point likely not lost on government officials.
A Clash With Prosecutorial Discretion?
According to USCIS, immigrants are ineligible for a provisional waiver if:
- They are in removal proceedings that have not been terminated or dismissed
- They have not had the charging document (Notice to Appear) to initiate removal proceedings cancelled
- They are in removal proceedings that have been administratively closed but not subsequently reopened for the issuance of a final voluntary departure order
The third provision is confusing.
Does it signify a repudiation of prosecutorial discretion?
When the government decides to grant deferred prosecution at immigration court, the parties agree to administratively close proceedings without prejudice.
Once the case is closed, immigrants should be able to seek a provisional I-601 waiver as part of their adjustment of status efforts.
Under the proposed regulation, however, the government is mandating that the case must be reopened and immigrants must accept a voluntary departure order.
Such orders last only four months. What happens if the provisional waiver is not acted upon in that period of time?
Must the immigrant depart due to the voluntary departure order? If not, the voluntary departure order becomes a deportation order.
Why is a voluntary departure order needed in the first place?
If an immigrant goes to his consular processing interview, he will be barred from re-entry if his waiver is not granted, regardless of the voluntary departure order.
On the other hand, if a client is granted a re-entry waiver, must they still wait outside the country for the voluntary departure period to pass?
A Call For Vigilance
Contrary to the current hoopla, proposals like the current I-601 provisional family unity waivers do not make winning permanent residence easier.
I’m concerned the nuanced provisions could become deportation nooses around the necks of immigrants once election season ends.
In my role as a San Diego immigration lawyer, I’m advising clients not to bite into the I-601 apple until we know there are no worms inside.
In short, vigilance is the word of the day.
By Carlos Batara, Immigration Law, Policy, And Politics