On January 3, 2013, USCIS published a rule which amends its policy to allow certain individuals to apply for a provisional unlawful presence waiver before departing from the United States for their immigrant visa interviews in their country of origin. This rule, known as the I-601A Provisional Waiver, will greatly reduce the length of time U.S. citizens are separated from their immediate relatives who are in the process of obtaining immigrant visas. The change that could affect as many as 1 million of the estimated 11 million immigrants unlawfully present in the United States.
What is an I-601A Provisional Waiver?
An I-601A Provisional Waiver is a waiver issued undocumented immigrants who can demonstrate that time apart from an U.S. citizen spouse, child or parent would create extreme hardship. The provisional waiver allows the immediate family members of a U.S. citizen to start the application process for a legal visa without leaving the United States. Immediate relatives are allowed to wait in the United States while USCIS decides on their waiver application and leave the United States for their visa interview abroad once the waiver has been approved.
How is it different from an I-601 Waiver of Ground of Inadmissibility?
Under current law, immediate relatives of U.S. citizens who are ineligible for an immigrant visa must leave the United States and obtain an immigrant visa abroad. Yet, individuals who have been unlawfully present in the United States for more than six months are subject to a bar of inadmissibility for 3 or 10 years if they leave the United States.
While USCIS’ existing I-601 hardship waiver process allows such individuals to obtain a waiver in order to return to the United States, immediate relatives cannot file a waiver application until after they have appeared for a visa interview abroad and their visa application has been denied. In addition, the applicant has to remain outside of the United States while waiting on USCIS’ decision of their waiver application, a process which could take as long as a year.
As a result, USCIS has determined that it is unfair to require the immediate relatives of U.S. citizens to wait outside the United States for the long period it takes to adjudicate their waiver applications. As a result, USCIS created the I-601A Provisional Waiver process, which allows certain immediate family members (children, spouse, and parents) of U.S. citizens to apply for a waiver while they are in the United States.
Who is eligible to apply?
An applicant must be someone who
- Has an approved I-130 Immigrant Petition filed by their U.S. citizen spouse or U.S. citizen parent under the Immediate Relative category, or an approved I-360 Violence Against Women’s Act (VAWA) Petition as an Immediate Relative
- Is physically present in the United States when their Form I-601A, Application for a Provisional Unlawful Presence Waiver, is filed and present on the date of their biometrics (fingerprinting) appointment for the application
- Has not been subject to any other bar of inadmissibility
- Has a pending Department of State (DOS) case with the National Visa Center and has paid the visa application fees
- Has not been scheduled for a visa interview appointment at the U.S. consulate before January 3, 2013
- Has shown that a waiver denial would result in extreme hardship to his or her U.S. citizen spouse or parent
What would disqualify someone?
Aside from an applicant not being able to prove that he or she meets the above criteria, those who have an outstanding deportation or removal order are ineligible. In order to be eligible to apply, they would first need to have the Immigration Court re-open their removal or deportation order and administratively close or terminate their case. The same is true for someone who was granted Voluntary Departure, but did not leave the US under the grant of Voluntary Departure.
What about people already in removal proceedings?
Individuals in removal proceedings have their case terminated or administratively closed, or have ICE cancel your Notice to Appear in order to apply for the I-601A provisional waiver. It is important to note that if you have your case administratively closed, you will be subject to a deportation order if you leave the United States without having your case terminated, even if you are granted an I-601A provisional waiver.
What is the application process?
In most cases, the provisional unlawful presence waiver application will be adjudicated at the USCIS National Benefits Center (NBC). USCIS will make a decision based on the applicant’s responses in the Form I–601A, any supporting documentation, and any results from background and security checks. DHS may also request that an applicant appear for an interview, although the chances will be rare. In any case where an interview is required, USCIS will schedule the applicant for an interview at a local district office.
When can I apply?
The rule will go into effect on March 4, 2013. Anyone who applies for an I-601A Provisional Waiver before March 4, 2013 will be rejected.
What will be the government’s fee to apply?
The Department of Homeland Security (DHS) has decided that the initial filing fee for the Form I-601A, Application for a Provisional Unlawful Presence Waiver, will be $585.
Can I apply for the I-601A Provisional Waiver if I am filing an I-485 Application for Adjustment of Status?
A foreign national who is present in the United States and is eligible to apply for an I-485 Application for Adjustment of Status would not apply for an I-601A Provisional Waiver. If you require a waiver for the unlawful presence bar, you should file a Form I-601, Application for Waiver of Ground of Inadmissibility. The I-601A Provisional Waiver is only for those who are currently in the United States but will apply for an immigrant visa at the U.S. Consulate abroad as they are ineligible to apply for a Form I-485, Application for Adjustment of Status.
If my application is approved, will I be able to apply for status in the US without leaving or for work authorization?
An I-601A Provisional Waiver will not allow someone to apply for status without leaving the US and approval of the I-601A Provisional Waiver does not allow the person to apply for work authorization, a driver’s license or a social security card.
If I have been granted Deferred Action (DACA), can I apply for an I-601A Provisional Waiver?
Individuals who have been granted Deferred Action under the Deferred Action for Childhood Arrivals (DACA) are eligible to apply for an I-601A Provisional Waiver as long as they meet all the requirements for the program. However, a DACA beneficiary who has an outstanding order of removal would not be eligible to apply for the I-601A Provisional Waiver without first having their case re-opened by the Immigration Court and administratively closed or terminated.
How long will it take USCIS to decide on a provisional waiver application?
Right now, USCIS does not have a timeline for how long they expect to take to decide on a provisional waiver application. They expect to know more after March 4, 2013 when they can see how many applications they receive. However, USCIS and the Department of State (DOS) are working closely to make sure that the approval of a provisional unlawful presence waiver application is close to the time of the scheduled immigrant visa interview abroad. DOS estimates that it will schedule the applicant for an immigrant visa interview within two to three months after the approval of the provisional unlawful presence waiver and the applicant’s submission of the required immigrant visa processing documents to DOS.
This timeframe will allow the immediate relative(s) the opportunity to remain united with his or her U.S. citizen spouse or parent until shortly before his or her immigrant visa interview abroad. It will also allow DOS to give a ruling on the immigrant visa application shortly after the applicant appears for his or her interview. This streamlined process will significantly shorten the length of time immediate relatives must remain outside the United States before they can rejoin their U.S. citizen relatives.
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 the applicant 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 the 3 or 10 year bar, the applicant will be denied an immigrant visa.
If my provisional waiver application is denied, can I file it again in the future?
Yes, especially if your circumstances have changed. However, 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. Therefore, it is best to submit a strong application the first time you apply, since it may be more difficult to get an approval the second time.
If my provisional waiver application is denied, can I still apply for a hardship waiver under regular processing?
Yes, if your Form I-601A, Application for Provisional Waiver Application is denied, you may still be eligible to apply for an I-601 hardship waiver under the regular processing.
If my provisional waiver application is denied, will I be deported?
USCIS will continue to follow their current standard in deciding whether to start deportation proceedings against someone whose provisional waiver application is denied. Most applicants will not be at risk. However, if you provide false information on your application or submit false documents, USCIS might initiate deportation proceedings against you. Also, those with certain criminal convictions may be subject to deportation proceedings. For more information on USCIS standards regarding deportation proceedings for denied applicants, go to www.uscis.gov/NTA.
If I have already applied for my immigrant visa, have been scheduled for an interview, 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 the interview, cancelled the interview, or rescheduled the 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.
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