Think Immigration: Rules on Provisional Unlawful Presence Waivers Must Be Revisited

Among the sea of acronyms that immigration attorneys and our clients deal with is one that is less well-known, the Form I-601A waiver. The waiver is intended to offer immediate family of U.S. citizens assurance that they won’t need to remain separated from their families when they leave the country for consular processing. A previous AILA post has covered the significant backlogs and issues resulting from the delays in processing this waiver.

Beyond that, it boggles the mind that the Department of Homeland Security (DHS) doesn’t issue employment authorization documents (EADs) to those granted the waivers. As back story, the two final rules that gave life to the I-601A as we know it today both contemplated whether applicants should be permitted to apply for work authorization, and both rules declined to provide such a benefit.

DHS elaborated on the rationale for not allowing I-601A applicants to apply for EADs, among other immigration benefits, in the Final Rule published April 29, 2016, to the Federal Register. There, it said that “[i]n particular, because an approved immigrant visa petition and a waiver of inadmissibility do not independently confer any immigration status or otherwise afford lawful presence in the United States, neither may typically serve as the basis for interim benefits.” The Department also pointed out that “issuance of interim benefits to individuals who are granted provisional waivers may encourage them to postpone their timely departures from the United States to pursue their immigrant visa applications.”

This purported rationale creates an absurd double standard. While it is true that neither the visa petition nor the application for an unlawful presence waiver confers any immigration status or lawful presence, DHS has shown that it has no problem deviating from the standard that a petition cannot serve as the basis for interim benefits when it suits them. Like any approved visa petition that precedes an unlawful presence waiver application, an I-360 is only a petition, one of several steps until the noncitizen can formally receive their green card. Yet, many I-360 beneficiaries also qualify for an EAD. One such work permit, authorized under deferred action, category (c)(14), remains valid for a period of four years. That means there is a window that closes in which, if an I-601A applicant were considered for deferred action, the noncitizen would no longer incentivized to postpone their “timely departure from the United States to pursue their immigrant visa application[.]”

Four years is also quite a coincidental number. Current USCIS processing time for the adjudication of a Form I-601A application is 43 months; five months shy of four years. That’s a mandate of almost four more years in this country without permission to work, waiting to even apply for some kind of status. Four years of relying on the help and support of family members until the noncitizen can finally be issued their visa.

A cancellation of removal applicant can apply for work authorization under category (c)(10). This, for a visa category where Congress has authorized only 4,000 annual visas. That is, only a small percentage of cancellation applicants will be approved each year for their final visa, although all applicants are eligible for an EAD. In contrast, USCIS’s quarterly reports for Q1 2024 show 16,832 approved I-601As and only 2,841 denied, which means the Department greenlighted over 85% of those applicants to move on and apply for their interview at their respective embassies or consulates. Both applications rely on very similar legal standards in their adjudication, but a very large number of I-601A applicants will have the opportunity to be granted their final visa while a very small number of cancellation applicants achieve the same. The wide disparity in how such factually similar cases are favorably resolved highlights the fundamental unfairness of letting certain noncitizens become lawfully employed and not others.

Immediately after proving extreme hardship (potentially including financial hardship) to a qualifying relative (QR), an I-601A applicant must then apply for their visa, and schedule an interview to consular process, and at least one sponsor must submit Form I-864, Affidavit of Support, on their behalf. That form, usually submitted by either the QR or someone in the same social network as the QR and applicant, must show the intending immigrant has “adequate means of financial support and is not likely to rely on the U.S. government for financial support.”

None of it makes any logical sense, and the mismatched whims of the agencies overseeing immigration benefits have not only imposed hardship on the noncitizen themselves, but also the Americans who rely on them. Employment authorization documents are authorized by statute with the specific categories enumerated via the administrative rule making process. Although the two rules that provide a mechanism for waiving this ground of inadmissibility are final, the agency always retains the right to revisit or amend a final rule and reopen the comment period when conditions change, or a rule seems outdated. The gradual increase in processing time for I-601A applications has changed conditions such that these rules are now outdated. DHS has the authority to alleviate the burden and provide a mechanism for these individuals, whose inadmissibility is already causing extreme hardship to their qualifying relatives, to obtain employment authorization. I only hope that they don’t wait another four years to do so.

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AILA Members interested in learning more about I-601(a) waivers and immigration waivers generally, check out Provisional Waivers: A Practitioner's Guide, The Waivers Book, and our Waivers Online Course.

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