The expanded I-601 (A) Stateside Waiver: An expansion on waivers for illegal aliens currently in United States, waiving the overstay bar and allowing aliens to apply for an immigrant visa in home country.

On July 29, the Immigration Department greatly expanded the waiver program for current illegal aliens which would allow aliens to go back to their home country and apply for an immigrant visa.

According to INA Section 212 (a) (9) (B) (v) if any alien overstays in the United States over 180 days he/she is barred for three years from visa eligibility. If an alien overstays more than 1 year, they are barred 10 years from visa eligibility. However, an alien who overstays may apply for the I-601 (A) waiver while in United States. I-601 (A) waiver forgives illegal overstays. After receiving the waiver the alien may return to Korea or their home country and return to United States legally after receiving their visa.

Administrative Procedural Changes to I-601(A) Put into Effect in 2013

Prior to 2013 any alien who overstayed in the United States had to go back to their home country was required to apply and be rejected for a visa in their home country and there after apply for the 3 or 10-year waiver. However, an administrative procedural changed was enacted in 2013. Since 2013, immediate relatives (spouse, minor children or parents) of US citizens were able to apply for I-601 (A), which waives 3-year or 10-year bar while remaining in United States. If waiver is granted the alien would then be able to go back to their home country and receive a visa and reenter United States with an immigrant visa. To receive such waiver approval alien’s citizen spouse or parent would have had to prove they would experience "extreme hardship" without the presence of alien in United States.

This procedure change was a big help to many potential applicants. 1) There was no risk involved. Since the applicant was applying in US, even if alien was not initially approved, the alien may re-apply while remaining in the United States. This procedural change eliminated the risk of being barred for 10 years because the application was processed while alien remained in US. 2) Also, while the waiver application was being processed (at least 6 months to 1 year) alien would be able to stay with his/her family in the United States. 3) Even if the alien was in removal proceedings alien may apply for this waiver and be granted a way out of removal proceedings. After waiver was granted the alien then may return to home country voluntarily and apply and receive their visa. 

As stated above I-601 (A) was available to only aliens who has a spouse, minor children or parents with US citizenship.

On July 29th 2016 USCIS announced a great expansion of eligibility of aliens who may apply for I-601 (A).

However, new changes to administrative procedure of this waiver was announced on July 29. New changes are to be implemented starting August 29. This new change expands the I-601 (A) waiver eligibility greatly.

· Extended to aliens with spouse, children, parents and siblings with US citizenship and aliens with spouse and children with permanent residency status.

· Family-based and employment-based applications are eligible as well.

(Alien still needs a qualifying relative (citizen or permanent resident parents or children who must prove “extreme hardship” to them should the alien be barred or removed)

Examples of our clients.

1) The husband is legal permanent resident but wife has fallen into illegal status

2) unmarried or married children of Parents who are US citizens

Aliens under similar circumstances may apply for family-based immigration. After alien’s petition for family-based immigration is approved, he/she may apply for I-601 (A) waiver. Once waiver is granted and the alien receives forgiveness of his/her overstay, alien then may go out to Home country and apply for a visa and return to United States.

3) Siblings who applied for immigration a long time ago but have fallen to illegal status may apply for waivers under the new procedure. (However, the sibling alien still would need a parent or a spouse who is a legal permanent resident or citizen of United States who would experience “extreme hardship” without the alien’s presence in United States).

Aliens under similar circumstances may also apply for I-601 (A) waiver. After being granted the waiver, alien may go back to Korea and apply for a visa to return to United States.

4) Wife received her legal permanent resident status through her employment-based visa but her husband overstayed and was not able to stay together.

Aliens under similar circumstances may use the already-approved employment-based immigration application. Alien’s wife may apply as a "qualifying relative" (who may suffer “extreme hardship”) and apply for an I-601 (A) waiver. Then, based on the approved I-140 employment-based visa, alien may apply for a visa in their home country  and reenter the United States.

However, in all of these circumstances alien’s qualifying relative must still prove "extreme hardship.” Since there are no changes to that requirement, those who may be qualified to receive these benefits due to the expansion of the eligibility of the waiver should seek professional assistance so they may take advantage of this great opportunity.