I-601A Provisional Waiver
The provisional unlawful presence waiver process allows immediate relatives of U.S. citizens (spouses, children, or parents) and sons and daughter of U.S. Citizens as well as spouses and children of Lawful Permanent Residents who are currently residing in the United States to apply for a provisional waiver while in the United States, provided they meet all eligibility requirements outlined in the regulations and warrant a favorable exercise of discretion. The law provides that USCIS can deny an I-601A waiver application if USCIS has reason to believe that the individual is subject to another ground of inadmissibility, in addition to the unlawful presence ground that is the subject of the I-601A waiver application. The 601A Provisional Waiver is designed to reduce the length of time U.S. citizens are separated from their immediate relatives who engage in consular processing abroad. The 601A Provisional Waiver means that many immigrants will leave the United States, knowing in advance that their case will most likely be approved, and they could be reunited with their families in the U.S. in a matter of days as opposed to years.
WHO IS ELIGIBLE FOR I-601A PROVISIONAL WAIVER:
- Be married to a U.S. citizen
(Or immigrants between 17 and 21 years old who have a U.S. citizen parent,
or immigrants who have a U.S. citizen child over 21 years old)
- Have an approved I-130 or I-360 family-based petition
- Be present in the U.S. at the time of filing the application for the waiver
- Prove extreme hardship to his or her U.S. citizen spouse or parent
- Be only inadmissible only under section INA 212(a)(9)(B)(i) (i.e. would subject only to the 3- or 10-year bars of inadmissibility for unlawful presence over 180 days).
WHO IS NOT ELIGIBLE FOR I-601A WAIVER
- Immigrants who have certain criminal convictions
- Immigrants who have committed fraud, for example by entering the U.S. with a fake passport through an airport
- Immigrants with final deportation or removal orders from an Immigration Court
- Immigrants who have already been scheduled for an interview at their consulate based on an approved family petition
Provisional waiver does not apply to any grounds of inadmissibility other than unlawful presence (e.g. criminal grounds of inadmissibility, medical, fraud or misrepresentation, false claims to U.S. citizenship, permanent bar, etc.)?
During the immigrant visa interview, the consular officer will make the finding of inadmissibility based on unlawful presence and apply the provisional waiver. However, if the consular officer determines at the immigrant visa interview that individual has other ineligibilities beyond unlawful presence, the USCIS approved provisional waiver is automatically revoked.
If the consular officer determines that other grounds of inadmissibility are found (e.g. criminal grounds of inadmissibility, medical grounds, fraud or misrepresentation bars, permanent bar, etc.), then the individual would need to submit another waiver application, if eligible, while abroad and wait for its adjudication while outside of the U.S.
Is an individual with grant of voluntary departure eligible for Provisional Waiver?
First of all, an individual who was granted voluntary departure is ineligible for a provisional waiver while the voluntary departure period is still in effect. If the individual does not depart as required under the voluntary departure order, the alternate order of removal takes effect. However, 8 CFR §212.7(e)(4)(iv) makes an exception to the final order bar where the applicant first successfully obtains an approved I-212.
Individuals in removal proceedings
For individuals who are currently in removal proceedings, the proper course would be to request administrative closure to pursue a provisional waiver. When the provisional waiver is approved, file a motion to recalendar and request termination of proceedings so that your client can proceed abroad for consular processing.
If you or someone you know may be eligible for a provisional unlawful presence waiver, contact Immigration Attorney Irina Vinogradsky for a consultation!
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