Green Card changes seek to end US immigrant separation

[Adriene H 89]

Your thoughts? Discuss

http://www.bbc.co.uk/news/world-us-canada-16446885

[JimVaPhuong 4,863]

Your thoughts? Discuss

http://www.bbc.co.uk/news/world-us-canada-16446885

Maybe good. Maybe bad.

The Republicans obviously hate this because they see it as another attempt by the Obama administration to effect immigration reform by executive order rather than a change in the law. That aside...

Being able to submit an I-601 waiver application "in country" should be a major advantage for someone who entered without inspection. In theory, they wouldn't have to leave the US until it was time for their consular interview, which would mean a minimum of separation time. There are a couple of potential problems, though.

First, the I-601 waiver is meant to overcome an inadmissibility. In the case of an alien unlawfully present, the inadmissibility is the result of the 3 year or 10 year ban that results from the accumulated unlawful presence. However, the ban doesn't take effect until alien leaves the United States. Technically, they would be applying for a waiver of an inadmissibility that doesn't exist yet. I'm not aware of any provision in immigration law that allows for this. If they go through with this policy change, and someone submits an I-601 waiver request that is ultimately denied, they're going to appeal it to the BIA. The BIA could determine that the "in country" I-601 waiver request is contrary to law because the inadmissibility doesn't yet exist, which could nuke the process for everyone else trying it. This could potentially be bad because...

Second, submitting an "in country" I-601 waiver request has the effect of calling the attention of USCIS upon an alien who is unlawfully present. If the I-601 is denied then USCIS could begin removal proceedings. The alien will ultimately have to leave the US with the knowledge that they would require both an I-601 and I-212 waiver before a visa would be approved, and the foreknowledge that both waivers will be denied. Sometimes it's better to stay in the frying pan...

[NevermindVz 51]

Maybe good. Maybe bad.

The Republicans obviously hate this because they see it as another attempt by the Obama administration to effect immigration reform by executive order rather than a change in the law. That aside...

Being able to submit an I-601 waiver application "in country" should be a major advantage for someone who entered without inspection. In theory, they wouldn't have to leave the US until it was time for their consular interview, which would mean a minimum of separation time. There are a couple of potential problems, though.

First, the I-601 waiver is meant to overcome an inadmissibility. In the case of an alien unlawfully present, the inadmissibility is the result of the 3 year or 10 year ban that results from the accumulated unlawful presence. However, the ban doesn't take effect until alien leaves the United States. Technically, they would be applying for a waiver of an inadmissibility that doesn't exist yet. I'm not aware of any provision in immigration law that allows for this. If they go through with this policy change, and someone submits an I-601 waiver request that is ultimately denied, they're going to appeal it to the BIA. The BIA could determine that the "in country" I-601 waiver request is contrary to law because the inadmissibility doesn't yet exist, which could nuke the process for everyone else trying it. This could potentially be bad because...

Second, submitting an "in country" I-601 waiver request has the effect of calling the attention of USCIS upon an alien who is unlawfully present. If the I-601 is denied then USCIS could begin removal proceedings. The alien will ultimately have to leave the US with the knowledge that they would require both an I-601 and I-212 waiver before a visa would be approved, and the foreknowledge that both waivers will be denied. Sometimes it's better to stay in the frying pan...

Thanks for the explanation! Is this new law related at all (or could be related in the future) to family-based categories (F1,F2A,F2B,F3,F4)?