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Proposed I-601A Provisional Waiver for Unlawful Presence

UPDATE ON PROPOSED PROVISIONAL WAIVERS: The final provisional waiver rule was published on January 3, 2013 and will go into effect on March 4, 2013. The USCIS is preparing a field guidance and training manuals, and expects that adjudication standards will be very close to those currently in place for centralized I-601 waivers.

Why was the I-601A Provisional or Stateside Waiver Proposed?

The main goal is to cut waiting time while the family will get to stay together. Under the current process, which is available to persons not able to take advantage of the new provisional waiver process, eligible applicants for immigrant visas who have accrued unlawful presence beyond 6 or 12 months have to apply for an I-601 waiver of inadmissibility in their home country. By act of departing the United States, they will be inadmissible to enter the United States for 3 or 10 years, respectively. Applicants leave and are often separated from their loved one for extended periods of time up, sometimes more than a year. They will only be allowed to immigrate to the United States with an approved waiver of inadmissibility for unlawful presence.

While the proposed Provisional Waiver will allow the families be together during the adjudication of the waiver, the applicant will still have to demonstrate that (1) he or she warrants a favorable exercise of discretion, and (2) that the qualifying relative will suffer extreme hardship if the waiver is not approved.

What will the new form and filing fees?

Form I-601A. Filing fee $585 plus biometrics fee of $85 ($670). No fee waiver available for I-601A. There will be fingerprints taken but there will be no interview.

What Will the New Provisional Waiver Do

Under the new provisional waiver process, immediate relatives of U.S. citizens - certain spouses, children under 21, and parents - who need a waiver of unlawful presence in order to obtain an immigrant visa could file a new Form I-601A, Application for Provisional Unlawful Presence Waiver, before leaving the United States to obtain an immigrant visa at a U.S. Embassy or Consulate abroad. All individuals eligible for this streamlined process are still required to depart the United States and must meet all legal requirements for issuance of an immigrant visa and admission to the United States.

An individual may seek a provisional unlawful presence waiver if he or she:

  • Is physically present in the United States;
  • Is the beneficiary of an approved immigrant visa petition (I-130) classifying him or her as an immediate relative of a U.S. citizen;
  • Is actively pursuing the immigrant visa process and has already paid the Department of State immigrant visa processing fee;
  • Is not subject to any other grounds of inadmissibility other than unlawful presence; and
  • Can demonstrate that the refusal of admission would result in extreme hardship to a U.S. citizen spouse or parent.

An immediate relative would not be eligible for the proposed process if he or she:

  • Has an application already pending with USCIS for adjustment of status to lawful permanent resident;
  • Is subject to a final order of removal or reinstatement of a prior removal order;
  • May be found inadmissible at the time of the consular interview for reasons other than unlawful presence; or
  • Has already been scheduled for an immigrant visa interview at a U.S. Embassy or Consulate abroad (even if the applicant cancelled the interview, rescheduled the interview or failed to appear for the interview).

Allowing immediate relatives of U.S. citizens to receive provisional waivers in the United States before departure for their immigrant visa interview at a U.S. Embassy or Consulate means that:

  • Immigrant visa processing times will improve because of greater capacity in the United States and fewer case transfers between USCIS and the Department of State;
  • Immigrant visas will be issued without unnecessary delay (if the individual is otherwise eligible); and
  • The period of separation and hardship many U.S. citizens would face due to prolonged separation from their family members will be minimized.

    Advantages of Having an Immigration Lawyer to Assist You

    The U.S. immigration system consists of a framework of highly complex laws, regulations and policies that are constantly changing. Therefore, it is not surprising that many people find it difficult to navigate through the process without the guidance of a competent immigration lawyer. A competent lawyer will be able to assess your case and eligibility, identify the risks and even explore other legal avenues for gaining immigration status. If a problem arises, a lawyer has the recourses to deal with the issue more effectively than the applicant. If a person uses the services of non-accredited immigration consultants or "notarios", government agencies will not permit these consultants to intervene or represent the applicant should a problem arise with the filing of an application.

    To find if you qualify for the proposed Provisional or Stateside Waiver please contact the immigration law firm of Chavez & Valko, LLP where our immigration lawyers will meet with you and carefully evaluate your case.