With potential changes in the procedures regarding I-601 Waivers or Stateside Waivers, we decided to clarify this document’s role in the immigration process.
People who are married to U.S. citizens can file their green card applications in the U.S. if they entered the country legally and overstayed a visa. Being out of status doesn’t matter so long as they entered legally with a visa.
People who are married to U.S. citizens but who entered without inspection (crossing the border illegally) are not eligible to file their green card applications in the U.S. Under current law these people first need their U.S. citizen spouse to submit an I-130 petition, designating them as an approved family member, then they need to return to their country of origin and apply for a green card there. If they had been in the U.S. illegally for more than a year, by leaving, they are subject to a 3 to 10-year bar from returning to the U.S.
The 3 year bar is for people who accrue more than 180 days but less than a year of time out of status and then depart the U.S. The 10 year bar is for people who accrue a year or more out of status and then leave the U.S. A waiver of these grounds of inadmissibility is available if one can show their U.S. citizen or lawful permanent resident (LPR) spouse or parent would suffer extreme hardship if they were not permitted to stay in or return to the U.S. This is the I-601 extreme hardship waiver. Historically, and currently, these waivers were filed and decided in the country of origin. They can often take more than a year. Counting the time that it takes an EWI to apply for the I-601 Waiver and the green card, the applicant can be separated from his/her family for a long time.
There is a possibility that USCIS will change the procedure for applying for an I-601 Waiver. The latest USCIS report tells us that we should expect to hear the full story before then end of this year (2012). The indication is that the new procedures will allow people to apply for an I-601 Waiver from within the U.S.; not at the consulates as was the previous procedure. The person would still have to leave the U.S. and go to the U.S. consulate in their country of origin to obtain the green card, but at least they’d have some idea of their chances of approval and how long they may need to be out of the U.S. before they left.