U.S.C.I.S. Instructions for New I-601A Waiver Application to Be Processed in the U.S.

 
The new I-601A Waiver Application has been in the news a lot recently because it will give some people a chance to receive provisional waivers of the 3 or 10 year bar for being in the US illegally. If they receive a waiver, they can feel confident when they return to their home countries for the immigrant visa interview.
 
The provisional waivers will become final when the consulate approves the immigrant visa. Waiver applicants in the US illegally could remain in the US with their U.S. citizen spouse or parent while CIS is processing the waiver. The applicant would not have to wait abroad while U.S.C.I.S. adjudicates the waiver request.
 
Please note that the I-601A is not in effect yet and will not be available to potential applicants until USCIS publishes a final rule in the Federal Register specifying the effective date. People should not send an application requesting a provisional waiver at this time. USCIS will reject any application requesting this new process and we will return the application package and any related fees to the applicant. USCIS cannot accept applications until a final rule is issued and the process change becomes effective.
 
If you believe that the new I-601A will help you, you can start the procedure by having your qualifying relative file the I-130 visa petition on your behalf. Submission of the I-601A waiver application requires approval of the I-130 petition and proof of payment of the fee receipt of the forwarded petition by the National Visa Center.
 
Persons who file this new waiver would have to demonstrate extreme hardship to a U.S. citizen spouse or parent to receive a provisional waiver of the unlawful presence bars.

Here are some of the factors that USCIS considers when determining “extreme hardship”:
 
1. Health – an applicant’s medical condition that cannot be treated in Vietnam, or, for medical reasons, the US citizen spouse or parent of the applicant could not resettle in Vietnam
 
2. Financial Considerations – the applicant’s US citizen spouse or parent would experience severe economic hardship or inability to meet financial obligations in the US if he or she had to return to Vietnam to live
 
3. Education – If you had to return to Vietnam permanently, your US citizen spouse or parent your children in the US would be unable to complete their education in a reasonable manner
 
4. Personal Considerations – if you could not get a waiver and had to return to Vietnam permanently, how would this effect your spouse, children and other relatives in the US.?
 
5. Special Factors - Close relatives in the United States, difficulties in re-entering normal life in Vietnam
 
Note that USCIS will only consider hardship to a U.S. citizen spouse or parent. If you describe hardship to yourself, or anyone besides a U.S. citizen spouse or parent, you must show how this hardship will cause extreme hardship to your U.S. citizen spouse or parent.
 
Mere desire to remain with relatives in the US does not constitute “extreme hardship”. Claims to “extreme hardship” must be supported by solid evidence.
 
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Q.1. Wouldn’t the fact that the applicant does not want to return to live in a communist country that is a former enemy of the US constitute “extreme hardship” ?
 
A.1. The war ended 37 years ago and most Overseas Vietnamese would never forget how they got here, Vietnam and the US have established normal relation since 1995. For this reason, you need to provide qualifying elements and convincing factors to prove "extreme hardship" for consideration
 
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Q.2. If a waiver applicant has children in the US and does not want to be separated from them, would that be a ground for “extreme hardship” ?
 
A.2. The applicant would have to show that the children would suffer “extreme hardship” if they moved to live in Vietnam. It is very difficult to provide convincing evidence that life in Vietnam is an “extreme hardship”. As usual, you are advised to seek a professional and trustworthy office for assistance in this matter.
 
ROBERT MULLINS INTERNATIONAL www.rmiodp.com
Immigration Support Services-Tham Van Di Tru

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