Marriage Green Cards
I-601A Provisional Waivers
On January 13, 2013, DHS published the final rule that reduces the time a US. Citzen is separated from their immediate relatives (spouse, children and parents). The new rule will allow immediate family members of U.S. Citizens who entered the U.S. without inspection or are otherwise ineligible to adjust their status in the U.S. due to unlawful presence to apply for Form I-601-A Provisional Waiver in the United States. The rule will establish a process that will allow certain individuals to apply for a provisional unlawful presence waiver before they depart the United States to attend an immigrant visa interview in their country of origin. The rule became effective March 4, 2015.
The new rule is designed to prevent extremely hardship to U.S. citizens, and to avoid having spouses, sons and daughters and parents of U.S. Citizens separated from their families for potentially years while the waivers are pending.
Who is eligible to submit a Provisional Waiver?
To qualify a person must be at least 17 years old, and be the beneficiary of an approved I-130 as an immediate relative of a U.S. citizen. Immediate relatives are spouses, children and parents of U.S. citizens. The sponsoring son and daughter must be at least 21 years of age to file a petition for a parent. To be considered a child, the individual must be under 21 years of age. Although it is possible for a person over 21 years of age to be eligible under the Child Status Protection Act (CSPA).
In order to obtain a waiver, the applicant must demonstrate extreme hardship to the qualifying relative. The qualifying relative must be a spouse or parent who are U.S. citizens. While a LPR spouse or parent is eligible to apply for a regular I-601 waiver abroad, they are ineligible to qualify for an I-601A provisional waiver in the U.S..
What grounds of inadmissibility does the waiver apply to?
The waiver only applies to inadmissibility based on unlawful presence in the U.S.. Applicants must be subject to the 3 year and the 10 year bar once they leave the United States. Individuals subject to the permanent bar are ineligible to submit a waiver application until they have remained outside the U.S. for 10 years.
Individuals who are inadmissible for other reasons (fraud, criminal convictions etc.) are ineligible for provisional waivers.
What if a person is currently in removal proceedings or is subject to a final order of removal?
Such persons may participate in the provisional waiver program only if his removal proceedings have been administratively closed and have not been re-calendared as of the time that the waiver is submitted to the USCIS.
Persons in removal proceeding who have applied for DACA may apply for provisional waivers after USCIS grants their DACA applications, but only if they meet all the requirements for filing a provisional waiver and their removal proceeding have been administratively closed.
If the USCIS approves a provisional waiver for a person in removal proceedings, the person must seek termination or dismissal of the removal proceedings by the Executive Office for Immigration Review (EOIR), and this must be granted before the person departs the U.S. for their immigrant visa interview abroad. Failure to do so could prevent the person from obtaining an immigrant visa and returning to the U.S.
Persons under final order of removal are ineligible to participate in the provisional waiver program.
Can a person who had a previously scheduled immigrant visa interview (scheduled by DOS prior to January 3, 2013) abroad that he did not attend submit a provisional waiver?
Probably not. See the possible exceptions:
“An alien who is ineligible to apply for a provisional unlawful presence waiver because of a previously scheduled immigrant visa interview may still qualify for a provisional unlawful presence waiver if he or she has a new DOS immigrant visa case because 1) DOS terminated the immigrant visa registration associated with the previously scheduled interview, and they have a new immediate relative petition; or 2) the alien has a new immediate relative petition filed on his or her behalf by a different petitioner.”
If a I-601A waiver is denied, is it possible to appeal?
No. Although it is not possible to appeal a I-601A denial or submit a Motion To Reopen (the USCIS reserves the right to reopen or reconsider a I-601A denial on its own motion), it is possible to refile a waiver after a denial.
See quote from DHS:
“If an individual’s provisional unlawful presence waiver request is denied or withdrawn, the individual may file a new Form I-601A, in accordance with the form instructions and the required fees. The applicant’s case must still be pending with DOS, and the applicant must notify DOS that he or she intends to file a new Form I-601A. In the case of a withdrawn Form I-601A, USCIS will not refund the filing fees because USCIS has already undertaken steps to adjudicate the case.”
“Alternatively, an individual who withdraws his or her Form I-601A filing or whose Form I-601A is denied can reapply for a Form I-601 Application for Waiver of Grounds of Inadmissibility,with the USCIS Lockbox,after he or she attends the immigrant visa interview and after DOS conclusively determines that the individual is inadmissible. If the ground(s) of inadmissibility identified by the DOS consular officer can be waived, the individual can file a Form I-601 along with any supporting documentation or evidence needed to demonstrate eligibility for the waiver and ultimately the immigrant visa…”
“Applicants and their attorneys or accredited representatives also are reminded that they may address or correct mistakes by supplementing a pending Form I-601A waiver request with additional evidence or correcting the request before USCIS makes a final decision in the case. USCIS will take into consideration any evidence received when making the decision.”
Can a person who submits an I-601A application be placed in removal proceedings?
See USCIS statement regarding this issue:
“does not envision initiating removal proceedings against aliens whose Form I-601As are denied or withdrawn prior to final adjudication”, it reserves the right to do so if the person is considered to be a “DHS enforcement priority – that is, if the individual has a criminal history, has committed fraud, or otherwise poses a threat to national security or public safety.”
“DHS reminds the public that the filing or approval of a provisional unlawful presence waiver application will not: (1) confer any legal status; (2) protect against the accrual of additional unlawful presence; (3) authorize an alien to enter the United States without securing a visa or other appropriate entry document; (4) convey any interim benefits (e.g., employment authorization, advance parole, or eligibility to be paroled based solely on a pending or approved Form I-601A); or (5) protect an alien from being placed in removal proceedings or removed from the United States, in accordance with current DHS policies governing initiation of removal proceedings and use of prosecutorial discretion.”
What are the chances that your I-601A waiver will be granted?
This, of course, depends on the facts of your case, and how well your I-601A waiver is documented to demonstrate “extreme hardship” to your qualifying relatives. Do not submit 5 or 6 exhibits and expect to receive an approval. Here, it is absolutely essential that your attorney know the legal basis for establishing “extreme hardship”, and that he or she has prepared many successful I-601 waiver applications.
Extreme hardship can be emotional, financial, medical, etc. and hopefully a combination of these and many other factors. Last year, the USCIS denied 34%, or a little more than one out of every three, I-601 waivers.