I-601A WAIVERS FOR UNLAWFUL PRESENCE
USCIS to Allow Additional Applicants for Provisional Waiver Process
The Obama Administration finalized a new rule that expands upon the 2013 rule (see below) that waives the 3-year/10-year re-entry bars to becoming a US Permanent Resident. The new rule becomes effective August 29, 2016. The updated rule would expand the people eligible for the waiver to all individuals with an approved immigration petition regardless of visa category and would expand the family-based waiver to anyone who had a relative who is a legal permanent resident (LPR) in the U.S. This means undocumented applicants who either entered the US illegally or overstayed their visas, who are seeking employment based immigration petitions, have a relative in the U.S. who is not a citizen but has LPR status, or is eligible to receive a green card through the visa lottery program is now eligible for the waiver. Another change under the expansion applies to those with a final order of deportation. Individuals with a final order of deportation will now be eligible to apply for a provisional waiver. No matter which category the application for Permanent Residency, the applicant must have an LPR or US citizen spouse or parent who will suffer “extreme hardship” if the applicant is not allowed to return to the United States. Extreme hardship is defined by case law and by statutory law, and is described on this page below.
New Procedure Allows Time Spent Outside The US To Be Reduced To A Matter Of Days
Beginning March 4, 2013, certain immigrant visa applicants who are spouses or the sons or daughters of U.S. citizens have been able to apply for I-601A Provisional unlawful presence waivers before they leave the United States. The I-601A Provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver in the United States and find out whether it has been granted before they depart for their immigrant visa interviews at a U.S. embassy or consulate abroad.
The new process will most definitely shorten the time U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States. Most of our clients are able to obtain their immigrant visas and return to the United States within a week.
Until recently, under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return to the United States. Under the existing waiver process, which remains in effect for those ineligible for the I-601A Provisional Waiver program, immediate relatives cannot apply for a waiver until after they have appeared for an immigrant visa interview abroad, and a Department of State (DOS) consular officer has determined that they are inadmissible to the United States.
Relatives of U.S. citizens and U.S. Permanent Residents who are ineligible for the new Provisional unlawful presence waiver can still choose to apply for a waiver using the existing process by filing a Form I-601, Application for Waiver of Grounds of Inadmissibility, after a DOS consular officer has determined that he or she is inadmissible to the United States.
What You Need to Know
The new I-601A Provisional unlawful presence waiver process does not change the immigrant visa process. Even if your I-601A Provisional unlawful presence waiver is approved, you are still required to depart the United States for your immigrant visa interview with a U.S. consular officer abroad.If a Provisional unlawful presence waiver is approved, it will only take effect after:
1. You depart the United States and appear for your immigrant visa interview, and
2. A DOS consular officer determines that you are otherwise admissible to the United States and eligible to receive an immigrant visa. NOTE: Do not depart until the National Visa Center (NVC) notifies you of your scheduled immigrant visa interview date and time at the designated U.S. Embassy or Consulate.
DOS may cancel your immigrant visa application process if you fail to appear at your interview.
If you are in removal proceedings, you are ineligible for an I-601A rovisional unlawful presence waiver unless, at the time you file your Form I-601A, your proceedings are administratively closed and have not been put back on the Department of Justice, Executive Office for Immigration Review (EOIR) calendar to continue your removal proceedings.
While USCIS does not envision placing I-601A applicants in removal proceedings, USCIS will follow current Department of Homeland Security (DHS) and USCIS Notice to Appear (NTA) guidance governing initiation of removal proceedings.
To be eligible for an I-601A Provisional unlawful presence waiver you must fulfill ALL of the following conditions:
- Be 17 years of age or older.Be an immediate relative of a U.S. citizen (not a preference category immigrant who has a visa available). An immediate relative is an individual who is the spouse, parent, or son or daughter of a U.S. citizen.
- Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
- Have a pending immigrant visa case with DOS for the approved immediate relative petition and have paid the DOS immigrant visa processing fee.
- Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent. You must show that your qualifying relative (your spouse or parent) will suffer extreme hardship if you are not approved for an immigrant visa (Permanent Resident status).
- The details of what this means and how to prove it are explained on the waivers page of this website. It is also explained in the Form I-601A Instructions.
- Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
- Not have been scheduled for an immigrant visa interview by DOS before January 3, 2013.
- Meet all other requirements for the provisional unlawful presence waiver, as detailed in 8 CFR 212.7(e) and the Form I-601A and its instructions.
You are not eligible for a provisional unlawful presence waiver if any of the following conditions apply to you:
1.You are subject to one or more grounds of inadmissibility other than unlawful presence. This means if you have committed a crime that makes you inadmissible, or you were charged with misrepresentation in attempting to obtain a visa or attempting to enter the United States, or if you were previously deported and re-entered the US. You must discuss your entire history with an immigration attorney to be sure that you are eligible for this program.
2. DOS initially acted before January 3, 2013, to schedule your Immigrant Visa (IV) interview for the approved immediate relative petition upon which your provisional unlawful presence waiver application is based, even if your immigrant visa interview has been canceled, you failed to appear for the interview, or your interview was rescheduled on or after Jan. 3, 2013.
Note: The date and time that you are scheduled to appear for your immigrant visa interview at the designated U.S. Embassy or Consulate is not the date USCIS will use to determine if you are eligible to file a Form I-601A. If DOS initially acted before January 3, 2013, to schedule your immigrant visa interview, you are not eligible to file a Form I-601A, even if you failed to appear for your interview or if you or DOS cancelled or rescheduled your interview for a date on or after January 3, 2013.
Instead, you may file a Form I-601, Application for Waiver of Grounds of Inadmissibility, from outside the United States after you have been interviewed for your immigrant visa, and the consular officer has found that you are inadmissible for a ground that may be waived.
3. You are in removal proceedings that have not been administratively closed.
4. At the time of filing, you are in removal proceedings that have been administratively closed but have been placed back on the EOIR calendar to continue your removal proceedings.
5. You do not meet one or more of the requirements, as outlined in the Form I-601A and its instructions.
Unlawful Presence Defined
'Unlawful presence' is a term that describes being in the United States after the expiration of your authorized time to be here, or presence in the United States without being legally admitted or paroled.
The Immigration and Nationality Act (INA) provides that any person who has been unlawfully present in the United States for a period of more than 180 days but less than 1 year and voluntarily departs the United States (whether or not prior to the commencement of proceedings) is excludable for a period of 3 years. The INA provides that any person who has been unlawfully present in the United States for more than a year is excludable for 10 years.
The calculation of this period of time is not counted during certain periods for some situations. Limited exceptions from this ground of exclusion exist for minors, asylees, family unity beneficiaries and battered women and children.
A waiver under INA 212(a)(9)(B)(v) can be granted if the applicant can establish that denial of his or her admission would result in "extreme hardship" for the U.S. citizen or lawful Permanent Resident.
“The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this rule achieves,” USCIS Director Mayorkas said. “The change will have a significant impact on American families by greatly reducing the time family members are separated from those they rely upon.”
Until recently, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents must leave the U.S. and obtain an immigrant visa abroad. Individuals who have accrued more than six months of unlawful presence while in the United States must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the United States after departing to obtain an immigrant visa. Under the existing waiver process, which remains available to those who do not qualify for the new process, immediate relatives cannot file a waiver application until after they have appeared for an immigrant visa interview abroad and the Department of State has determined that they are inadmissible.
In order to obtain an I-601A Provisional unlawful presence Waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent. USCIS will publish a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver, for individuals to use when applying for a provisional unlawful presence waiver under the new process.
Under the new I-601A Provisional Waiver process, immediate relatives must still depart the United States for the consular immigrant visa process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad. Individuals who file the Form I-601A must notify the Department of State’s National Visa Center that they are or will be seeking a provisional waiver from USCIS. The new process will reduce the amount of time U.S. citizen are separated from their qualifying immediate relatives. Details on the process changes are available at www.regulations.gov.
What is required:
If residing in the U.S., are over the age of 17, are the spouse or son or daughter of a United States citizen:
- Form I-601A -Provisional Application for Waiver of Grounds of Inadmissibility
- Statements of 'Extreme Hardship' signed by the U.S. citizen spouse or parent
- Supporting evidence of extreme hardship to the U.S. citizen spouse or parent
If you do not meet the above criterion or are outside the U.S.
- Form I-601 Application for Waiver of Grounds of Inadmissibility
- Proof that you are either a spouse or a parent who is a U.S. citizen or lawful Permanent Resident.
- Evidence if other family members are U.S. citizens or lawful residents.
- Statements of 'Extreme Hardship' signed by the U.S. citizen/permanent resident spouse or parent
- Supporting evidence of extreme hardship to the U.S. citizen/permanent resident spouse or parent
How Do You Demonstrate Extreme Hardship?
Extreme hardship can be demonstrated in many aspects of your son or daughter, or spouse's life such as
PERSONAL CONSIDERATIONS - Close relatives in the United States and /or your country; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.
HEALTH - Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in your country, anticipated duration of the treatment; whether a condition is chronic or acute, or long-or short-term.
FINANCIAL CONSIDERATIONS - Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (i.e., elderly and infirm parents).
EDUCATION - Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time for grade; availability of special requirements, such as training programs or internships in specific fields.
SPECIAL FACTORS - Cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures.
ANY OTHER FACTOR or situation which you feel may help you meet the burden of extreme hardship.
A waiver is dependent first upon a showing that keeping the applicant outside the US imposes an extreme hardship on his or her qualifying family member. The key term in the provision is "extreme" and thus you must show that in your case there is more than the average actual or prospective injury to the United States citizen or lawful permanent resident, for the bar (inadmissibility) to be removed. You will be required to present solid documentary evidence of everything that you assert proving that failure to receive the waiver requested will result in extreme hardship to US citizen or US Resident spouse or parent.
A waiver is also dependent upon a showing that the waiver applicant exhibits characteristics of a person who merits a favorable exercise of discretion by the officer adjudicating your request. This means that you must present evidence that the applicant is a good person, with good moral character.
Our office will work closely with you to collect this evidence and to create your waiver packet. It is important that we are very detailed as to how you meet the "extreme hardship" burden. Keep in mind that the hardship must be to your qualifying family member - not to the waiver applicant.
What will an attorney do for you?
The Long Beach Provisional Waiver attorney's job in preparing the waiver includes the following:
- Provide you with instructions on how to write your hardship letter;
- Provide you with a list of documents and photos needed;
- conduct research into the conditions in the region of the home country of immigrant, including newspaper articles, U.S. government reports, and other materials to support the claim of hardship;
- determine whether a statement from psychologist or doctors, or other professionals would be beneficial;
- Assist with guidance for preparation of affidavits from friends, relatives, teachers, employers, and others who can attest to facts relevant to the waiver request;
- Research any additional factors that might be relevant.
- Preparation of a brief- a detailed summary of what the evidence shows and why applicnt qualifies under relevant law for a waiver of inadmissibility.
We have been very successfully preparing I-601A Unlawful Presence Waivers for the past four years with a 100% success rate. Please do call or send an email to our Long Beach office to discuss your situation. Our Consultation Fee is only $50.00 and will be deducted from your bill once we begin the waiver process. We can provide you with a case analysis and assist you with this very important procedure.
PLEASE CALL OUR OFFICE IN LONG BEACH TO DISCUSS WITH ATTORNEY IF YOU WOULD LIKE TO DETERMINE WHETHER YOU ARE ELIGIBLE FOR AN I-601A PROVISIONAL WAIVER