ABCs of Immigration: I-601A Provisional Waiver

Posted on: October 31st, 2016
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It’s a common scenario: Laura enters the United States from Mexico without permission.  Eventually she meets a United States citizen, John, falls in love, and gets married.  John files a petition for Laura, and Laura is now ready to become a Lawful Permanent Resident.  However, there’s an obstacle in her way to gaining legal status: Laura is “inadmissible” to the United States because she has been “unlawfully present” for over 6 months.  She cannot become a Lawful Permanent Resident unless she can waive this ground of inadmissibility.

To win a waiver, Laura must show extreme hardship to her US citizen or Lawful Permanent Resident spouse or parent if the waiver is not granted.

Until 2013, Laura would have had to leave the United States and apply for an I-601 waiver at the US consulate in Mexico.  This would mean separation from her husband for months or sometimes over a year.  And if the waiver was denied, Laura was out of luck – she had no legal way to return to the United States for ten years (if she had spent more than a year in the US unlawfully) or three years (if she had spent between 180 days and 1 year in the US unlawfully).

Attorneys often recommended against this process in all but the most extreme cases, because the risk of “getting stuck” outside the country was too high.  Families like Laura and John often had no solution.

In January of 2013, USCIS announced the I-601A Provisional Unlawful Presence Waiver, allowing the spouses and children of United States citizens to apply for the waiver within the United States.  Laura can now wait for USCIS to make a decision on her waiver, and only leave the country for her appointment at the consulate once she knows that the waiver is approved.

At first, the I-601A provisional waiver was only available to spouses and children of US citizens.  Spouses and children of Lawful Permanent Residents still had to file the regular I-601 waiver applications at the consulate abroad. In 2016, USCIS expanded the provisional waiver program to include the relatives of Lawful Permanent Residents.

Who is eligible to apply?

To apply for the I-601A waiver, you must:

  • Be physically present in the United States;
  • Have an approved I-130 Petition (by a relative), I-140 Petition (by an employer), or I-360 Petition (certain other special categories);
  • Be inadmissible to the United States because you have spent more than 180 days unlawfully present here after your 18th birthday;
  • Have a qualifying relative who would suffer extreme hardship if the waiver is not granted.
    • The qualifying relative must be a US citizen or Lawful Permanent resident;
    • The qualifying relative must be a spouse or parent (NOT your child, though hardship to a child can be part of the argument for hardship to the qualifying relative);
    • The qualifying relative does not need to be the person who filed the I-130 petition for you (in other words, if your wife petitions for you, the qualifying relative can still be your mother).
    • You can have more than one qualifying relative; USCIS will “add up” their hardship in order to determine whether the overall level of hardship is “extreme.”

Who cannot, or should not, apply?

  • If you entered the United States on a visa and overstayed (even if the visa was fake, or was in someone else’s name), you may be able to adjust status within the United States, without a waiver and without an appointment at the consulate abroad. You should consult an attorney before filing an I-601A waiver and before departing the United States.
  • If you may be inadmissible for some other reason (for example, because of your criminal history, because you have committed fraud, because you have falsely claimed to be a US citizen, or because you have health problems such as a history of alcoholism), you must consult with an immigration attorney before filing a waiver. Even if your unlawful presence waiver is granted, the consulate can deny your visa if you are inadmissible for other reasons.
  • If you have ever been in removal (deportation) proceedings, or if you have previously been ordered deported, you must have your removal proceedings reopened and terminated before applying for an I-601A waiver.
  • If you are subject to the “permanent bar,” you are not eligible. The “permanent bar” applies to people in two scenarios:
    • You have been unlawfully present in the United States for a total period of more than one year after 1996, and have then re-entered or attempted to re-enter the United States unlawfully. For example, if Laura entered the United States unlawfully in 1997, went back to Mexico in 2000, then entered unlawfully again in 2002, she is subject to the permanent bar and not eligible for the provisional waiver.
    • You have been ordered removed from the United States, and then re-entered or attempted to re-enter the United States unlawfully. For example, if Laura entered the United States in 1997, was caught at the border and given an expedited order of removal, then re-entered unlawfully in 1998, she is subject to the permanent bar and is not eligible for the provisional waiver.

What is “extreme hardship”?

To win a waiver, the applicant must show that their US citizen or Lawful Permanent Resident spouse or parent would suffer “extreme hardship” if the waiver is not granted.  USCIS has recently released guidelines for how it interprets the “extreme hardship” scenario; please see our in-depth analysis here.

In short, “extreme hardship” must be something beyond the normal difficulties of family separation (if the qualifying relative would not go with the applicant to his or her country) or relocation (if the qualifying relative would leave the US to live with the applicant).  The analysis is highly individualized and holistic.

Common scenarios where USCIS is likely to find “extreme hardship” include, but are not limited to:

  • The qualifying relative is an active member of the US armed forces;
  • The qualifying relative suffers from a serious illness, and treatment would not be available in the applicant’s country;
  • The qualifying relative has a serious disability that would make life difficult in the applicant’s country;
  • The qualifying relative would risk violence or persecution in the applicant’s country, for example, because the qualifying relative is a same-sex spouse and the applicant’s country has outlawed same-sex relationships.

If my provisional waiver is granted, do I still have to leave the United States in order to become a Lawful Permanent Resident?

Yes.  A common misunderstanding is that the new waiver process eliminates the requirement to apply for a visa at the consulate abroad.  The waiver can reduce the time period you have to spend abroad (from over a year, to just a few weeks or months).  However, if you are not eligible to adjust status within the United States, you will still have to leave in order to obtain your immigrant visa from the consulate abroad.

If I have been granted Deferred Action for Childhood Arrivals (DACA) or Temporary Protected Status (TPS), can I apply for the I-601A provisional waiver?

Yes.  As long as you meet all of the other requirements of the program, you can apply.  However, just like any other applicant, you must make sure that any prior deportation proceedings are reopened and terminated, and that you are not subject to other grounds of inadmissibility.

However, people with DACA and TPS who would be eligible for the 601A waiver also may have other options for gaining legal status within the US, without having to travel to a consulate and without having to prove extreme hardship to a relative.  If you have DACA or TPS, and a US citizen or LPR parent or spouse, talk to an attorney about the possibility of traveling on advance parole and then adjusting status within the United States.  This may be a less expensive and less risky option for people who qualify.

How long will it take USCIS to decide a provisional waiver application?

As of October 2016, we are receiving decisions for cases filed between five and nine months ago.  We anticipate that the waiting period could get longer now that the waiver has been expanded to include the relatives of Lawful Permanent Residents.

What is the filing fee for the I-601A Unlawful Presence Waiver?

The filing fee is currently $585.  However, on December 23, 2016, the filing fee will increase to $930.

If my provisional waiver application is approved, does that guarantee that I will be granted an immigrant visa at the U.S. Consulate?

The approval of an I-601A Provisional Waiver does not guarantee that the U.S. consulate will grant an immigrant visa. The applicant must still show the consular officer that they are otherwise eligible for the immigrant visa. If the consular officer determines that the applicant is inadmissible on grounds other than previous unlawful presence, they will deny the visa.  This is why it is important to have an experienced immigration attorney understand your full immigration history and criminal history (if any), and screen for other possible problems with your application before you “get stuck” outside the United States.

If my waiver application is denied, can I file it again in the future?

Yes, especially if your circumstances have changed (for example, if your qualifying relative has joined the military or has been diagnosed with an illness).  However, you will need to pay the filing fee again. USCIS will expect an applicant who is applying a second time to provide additional evidence of extreme hardship or changed circumstances, above and beyond what was provided in the first application.

If my provisional waiver application is denied, can I still apply for a hardship waiver at the consulate?

Yes, if your provisional waiver application is denied, you can still leave the United States and submit a regular I-601 waiver at the consulate.  However, USCIS is often more generous than consulates, and there is no appeal of a consular official’s denial.  Therefore, if your I-601A waiver is denied, you should consult with an attorney and think carefully about the risks before departing the United States.

If my provisional waiver application is denied, will I be deported?

The Department of Homeland Security recognizes that it does not have the resources to deport every person who is present in the United States without authorization. For this reason, DHS focuses on deporting people who have connections to terrorism or gangs, who have criminal records, or who have entered the United States illegally since January 2014.  If none of these categories apply to you, and if you have never been ordered deported before, it is unlikely that DHS would start removal proceedings against you when your waiver is denied.

If you have ever been arrested, even if all the charges against you were dismissed, you should consult an attorney before submitting any application to USCIS.

If I have already applied for my immigrant visa, have been scheduled for an interview at the consulate, but have not left the United States, can I apply for a provisional waiver?

If your immigrant visa interview at the U.S. Consulate was scheduled by a consular officer before January 3, 2013 (even if the actual interview was scheduled for a date after January 3, 2013), you are not eligible to apply for a provisional waiver. This is also true for applicants who did not show up for their interview, cancelled their interview, or rescheduled their interview.

However, if you had an interview that was scheduled by the U.S. Consulate before January 3, 2013 and you are now applying for a visa based upon an I-130 Immediate Relative Petition filed by a different relative, you may be eligible to apply for the I-601A Provisional Waiver.

What type of information should I gather for my application?

When you consult an attorney about an unlawful presence waiver, you should be prepared to share the following information:

  • Your immigration history (how many times you have entered the United States, what applications have been filed for you in the past, whether you have ever been in immigration court proceedings). Please bring written records, if you can.
  • Your criminal history (how many times you have been arrested and when, what you were charged with, what your sentence was). Please bring court records, if you can.
  • Think about how your qualifying relative would suffer if s/he had to stay in the United States without you, or if s/he had to leave the United States to go back to your home country. Consider your relative’s financial situation, medical needs, any history of mental health challenges or emotional trauma, educational history, etc.

The more information and documentation you can share with an attorney, the better she can analyze your case, explain the strengths and weaknesses, evaluate any risks, and get started preparing your case.

 

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