Updated Explanation of the Provisional Waiver (I-601a) for the Unlawful Presence Bar

November 7, 2016.

By Ari Sauer, immigration lawyer with the Memphis, Tennessee office of the Siskind Susser immigration law firm.

(This is an update of my January 2, 2013 post on this subject: https://immigrationanswerman.com/2013/01/02/explanation-of-the-i-601a-provisional-waiver-rule/)

In 2013 USCIS created the I-601A Provisional Unlawful Presence Waiver of Inadmissibility for Certain Immediate Relatives. On August 29, 2016, USCIS updated the regulations to allow for more people to be eligible for the I-601a waiver.

Why did we need a Provisional Waiver rule?

Certain individuals are ineligible for an immigrant visa because they are inadmissible under INA section 212(a)(9)(B) for 3 or 10 years because they were Unlawfully Present in the US for more than 6 months, or they would become subject to this bar if they were to leave the US for an immigrant visa interview at the US consular post abroad.

A waiver of this inadmissibility is available for those who can show that if they are not granted the waiver, their US citizen or permanent resident (green card holder) spouse or parent(s) would suffer Extreme Hardship. Under the regular process for the I-601 Unlawful Presence Hardship Waiver for an applicant for an immigrant visa at the US consulate abroad, the foreign national must first apply for the immigrant visa at the US consulate, wait for the consulate to deny the visa because of their 3 or 10 year bar, and then they can apply for the I-601 hardship waiver. Under the regular process, the foreign national must then remain outside of the US while waiting for USCIS to decide whether to grant the waiver, which can take as long as a year. If the waiver is denied, then the foreign national is stuck outside the US until they have waited the required 3 or 10 years.

It was determined that it is unfair to require certain relatives of US citizens and US permanent relatives to wait outside the US for the long period it takes for them to adjudicate the waiver. They therefore created the I-601a Provisional Waiver process, which allows certain relatives of US citizens and US permanent residents who are in the US to apply for the waiver while they are in the US and wait here in the US while USCIS decides the waiver application. If the I-601a provisional waiver is granted, then the foreign national would leave the US for their visa interview. This significantly shortens the length of time that these relatives of US citizens and US permanent residents must remain separated from their family.

Am I required to hire an attorney to apply for an I-601A Provisional Waiver?

No. It is not required that an attorney be hired to prepare the waiver application, but it is highly recommended. The standard for this waiver, Extreme Hardship to a US citizen or US permanent resident parent or spouse, is very high. It is more than just the usual hardship one would suffer if separated from their spouse or parent. An immigration lawyer who is experienced in filing extreme hardship waivers knows what USCIS is looking to see. So while working with an attorney does not guarantee that your I-601a provisional waiver will be granted, it usually does result in a stronger application, which can improve your chances for receiving an approval.

At the very least, one should consult with an immigration lawyer before beginning the process to determine if there are other grounds of inadmissibility that might result in the foreign national becoming stranded abroad when they go for their visa interview.

Who is eligible to apply for the I-601A Provisional Waiver?

To be eligible for the Provisional Waiver the foreign national must:

1. Have an approved I-130 Immigrant Petition for Alien Relative;  I-360 Immigrant Petition for Amerasian, Widow(er), or Special Immigrant; or I-140 Immigrant Petition for Alien Worker.
2. Must be physically present in the United States when the I-601A application is filed and when they are fingerprinted for the application.
3. Be subject to inadmissibility to the US because they have spent more than 180 days Unlawfully Present in the US after their 18th birthday [INA Section 212(a)(9)(B)].
4. Must not be subject to any other ground of inadmissibility.
5. Have a pending Department of State (DOS) case with the National Visa Center and have paid the visa application fees.
6. Must be able to show Extreme Hardship to their US citizen or US permanent resident parent or spouse.

Can I apply for the I-601A waiver if I am filing an I-485 Application for Adjustment of Status?

No. A foreign national who is in the US and is eligible to apply for an I-485 Application for Adjustment of Status would not apply for an I-601A waiver. If they require a waiver of the 212(a)(9)(B) Unlawful Presence bar, they would file an I-601 waiver application. The I-601A Provisional Waiver application is only for those who are currently in the US, but will be required to apply for an immigrant visa at the consular post abroad because they are not eligible to apply for an I-485 Application for Adjustment of Status.

If I am outside the US can I apply for the I-601A waiver?

No. A foreign national must be physically present in the US at the time they file their I-601A application and at the time they have they biometrics (fingerprinting) appointment for the application. If someone is currently outside the US and comes into the US without inspection then they might make themselves permanently barred from eligibility for a visa. A foreign national who is outside the US must apply under the regular I-601 process.

I am Unlawfully Present, but I also have a bar because of some criminal convictions. Can I apply for the I-601A Waiver?

No. The I-601 Provisional Waiver is only available where the only ground of inadmissibility the foreign national has is the 3 or 10 year bar for Unlawful Presence under 212(a)(9)(B). If the foreign national requires a waiver for any other reason (such as  certain criminal convictions, health-related grounds, fraud or misrepresentation, or because the foreign national has been ordered removed or deported and has not been granted an I-212 waiver) then they are not eligible to apply for the I-601A waiver and must instead apply under the regular I-601 process.

I have been told I must stay outside the US for at least 10 years before I can apply for the I-601 waiver. Does this new rule change that?

No. The Provisional Waiver rule does apply to those who are subject to the permanent bar under INA Section 212(a)(9)(C) for those who have entered the US without inspection after having accrued more than a year of Unlawful Presence or having been Removed from the US. Those subject to the 212(a)(9)(C) permanent bar must remain outside the US for at least 10 years before they can apply for a waiver.

If my I-601A provisional waiver application is approved, will I be able to apply for status in the US without leaving or for work authorization?

No. The 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.

I am in removal proceedings before an Immigration Judge, can I apply for the I-601A Provisional Waiver?

In order for a foreign national who is in removal (deportation) proceedings to be able to apply for the I-601A provisional waiver, they must first have their Immigration Court case terminated or administratively closed, or must have ICE cancel or withdraw their Notice to Appear, before the foreign national is eligible to file an application for the I-601A provisional waiver. It is important to note that someone who has had their Immigration Court case administratively closed will be subject to a deportation order if they leave the US without first having their case terminated, even if their I-601A provisional waiver is granted.

I have been given a deportation order from the Immigration Court, but I never left the US. Can I apply for the I-601A Provisional Waiver?

If a foreign national has an outstanding deportation order or removal order, In order to be eligible to apply, they would first need to have to the Immigration Court reopen their removal or deportation order and then 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.

Alternatively, the foreign national would first need to apply for an I-212 Application for Permission to Reapply for Admission into the US After Deportation or Removal. If USCIS grants a provisional approval of the I-212 waiver, then the foreign national could be eligible to apply for the I-601a provisional waiver.

If I have been granted DACA Deferred Action, can I apply for an I-601A Provisional Waiver?

Those 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. Therefore, for example, 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 order reopened by the Immigration Court and administratively closed or terminated or without first being granted provisional approval of an I-212 waver.

If my I-601A application is denied, will I be able to file again?

Yes, especially where the foreign national’s circumstances have changed or where they have been the victim of non-lawyers who are not authorized to practice law. But USCIS will expect an applicant who is applying a second time to provide additional evidence of Extreme Hardship or changed circumstances with the second application, above and beyond what was provided in the denied application. So it is best to submit a strong application the first time you apply, as it may be more difficult to get an approval the second time.

While it is not required to have your application prepared by an immigration lawyer, it is recommended, as an experienced immigration lawyer knows what USCIS is looking for when deciding whether Extreme Hardship exists and will be able to help you put together a stronger application.

If my I-601A provisional waiver application is denied, would I still be eligible to apply for a standard I-601 hardship waiver under regular processing?

Yes, in many cases. If a foreign national’s I-601A provisional waiver application is denied, the foreign national may still be eligible to apply for an I-601 waiver under the regular processing. For example, if the I-601A was denied because the foreign national has another waivable ground of inadmissibility other than the 212(a)(9)(B) unlawful presence bar, they would still be eligible to apply for an I-601, along with whatever other waiver may be required, after being denied at the visa interview at the consular post abroad.

If my I-601A provisional waiver application is denied, will immigration try to deport me?

USCIS will continue to follow their current standard in deciding whether to issue a Notice to Appear to start deportation proceedings against someone whose I-601A provisional waiver application is denied. This means that immigration is not any more likely to try and deport someone whose I-601A is denied than someone who has been denied for any other immigration benefit. Most applicants will not be at risk for this. However if someone lies on their application or submits fake documents, they are likely to be put in deportation proceedings. Also, those with certain criminal convictions may be subject to deportation proceedings. For more information on the standards USCIS will use to determine who will be at risk of being put in deportation proceedings if their application is denied, go to www.uscis.gov/NTA.

If my I-601A Provisional Waiver application is approved, does that guarantee that I will be granted my immigrant visa at the consulate?

No. The approval of the I-601A provisional waiver is only a provisional waiver of the INA 212(a)(9)(B) 2 or 10 year bar for Unlawful Presence. It does not guarantee that the consular officer will find the foreign national eligible for the immigrant visa. The foreign national must still show the consular officer that they are otherwise eligible for the immigrant visa. Also, if the consular officer determines that the foreign national is inadmissible under a ground of inadmissibility other than the 3 or 10 year bar under 212(a)(9)(B), they will deny the visa. It may be that the foreign national would be eligible to apply for a waiver of inadmissibility for this additional bar, but this would require the filing and approval of a new waiver application. Furthermore, the consular officer can request that USCIS review the provisional waiver approval if the officer becomes aware of new factors which reflect on whether Extreme Hardship to a qualifying relative continues to exist.

If you would like to schedule a consultation appointment with me to discuss your eligibility for an I-601A provisional waiver call 901-507-4270 and my paralegal, Jessica Martinez, will assist you in scheduling the appointment with me to discuss your immigration case. Or you can click on the link below.