Written by attorney Gerald P. Goulder

Provisional Waiver for Unlawful Presence: New Stateside Unlawful Presence Waiver Process

USCIS has issued a new "provisional waiver" rule for obtaining stateside provisional review of applications for waivers of inadmissibility. The new rulewill allow certain family members of U.S. citizens who are physically present in the United States to remain in the country while applying for the waiver they need to become permanent residents.

USCIS will begin accepting provisional unlawful presence waivers on March 4, 2013. The provisional unlawful presence waiver application is submitted on Form I-601A.

A waiver is an application filed by an alien (non US-citizen) requesting permission for an alien to return to the U.S., or enter the U.S. A waiver application is filed by a foreign national who has broken the law, e.g., entered the U.S. without a visa, and cannot obtain permanent residence in the U.S. without receiving a waiver of the inadmissibility from USCIS. Waivers are available for unlawful presence, certain crimes, overstaying lawful presence, or other immigration violations.

Previously, a waiver of inadmissibility was only available after on departs the U.S., is denied an immigrant visa at a U.S. Consulate, and applies for the waiver while remaining outside the United States.

The revised stateside provisional waiver process change permits certain immediate family members of U.S. citizens (spouses, parents of citizens at least 21 years of age, and minor children) to apply for a provisional waiver of unlawful presence while remaining in the U.S., thereby cutting down on the lengthy waits-sometimes a year or more-during which these citizens are separated from their families during the process. To obtain the waiver, applicants would still need to meet the strict letter of the law which requires them to prove that family separation will cause their American citizen spouse or parent extreme hardship.

If the stateside provisional waiver is granted, the foreign national must still leave the U.S. and apply for and receive an immigrant visa abroad before returning to the U.S. The length of time that families are forced to remain separated should be lessened considerably, and families may know in advance if USCIS will likely approve the waiver application, prior to departing for the immigrant visa interview abroad.

The provisional waiver process includes those eligible family members who have had removal proceedings administratively closed and whose cases have not been re-calendared at the time of filing the provisional waiver application. However, anyone with a final order of removal, or who has been previously removed, will not be eligible for the new waiver process.

In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent. USCIS will publish a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver, for individuals to use when applying for a provisional unlawful presence waiver under the new process.

Under the new provisional waiver process, immediate relatives must still depart the United States for the consular immigrant visa process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad. Individuals who file the Form I-601A must notify the Department of State’s National Visa Center that they are or will be seeking a provisional waiver from USCIS. The new process will reduce the amount of time U.S. citizen are separated from their qualifying immediate relatives.

If you have a pending immigrant visa case at the National Visa Center (NVC), you must notify the NVC if you choose to seek a provisional unlawful presence waiver before applying for the I-601A. If you do not notify NVC, your case may be scheduled for interview at a U.S. embassy or consulate abroad. If NVC has scheduled your immigrant visa appointment, you must notify the immigrant visa processing post where your appointment has been scheduled before applying for the provisional waiver.

Applicants with an interview appointment letter from the National Visa Center dated before January 3rd, 2013 are not eligible to file the I-601A. Only applicants scheduled by the National Visa Center on or after January 3rd, 2013 for an upcoming initial immigrant visa interview are eligible to apply for the I-601A. "Scheduled" means the date on which NVC took the action to schedule the case –not the date of the visa interview appointment. NVC dates interview appointment letters on the day it schedules a case, so refer to the appointment notification letter to see when NVC took the scheduling action.

NOTE: Again, the provisional waiver process is limited to unlawful presence waivers. If the consular visa officer determines at the immigrant visa interview that other grounds of inadmissibility apply (other than unlawful presence), the USCIS approved provisional waiver is automatically revoked.

Provisional Waiver FAQs

1. What is the new rule and how can it help my family?

Under current law, many immigrants who enter the country illegally or overstay their visas cannot apply for permanent residence (a "green card") in the U.S., and instead must finish the immigration process abroad. Unfortunately, just leaving the country—even to pick up a visa sponsored by a family member—automatically makes the intending immigrant subject to a penalty for their "unlawful presence," potentially separating them from their family for up to ten years.

For some, but not all, the penalty can be waived. Before this new rule, immigrants could be stranded outside the country for weeks, months or even years while waiting for a decision on whether they could return to their life in the United States. And all that time, the immigrant was stuck abroad, usually with no legal way to return. Many families endured the emotional strain, financial hardship and dangerous conditions. Others simply were unwilling to take the risk.

The new rule means that many immigrants will leave the United States, knowing in advance that their case will probably be approved, and they could be back with their families—as a legal resident—in a matter of days.

2. Who can apply under the new rule?

Only applicants who are an immediate relative of a US citizen (spouses, parents and certain children) can apply at this time, though the rule may later be expanded to other relatives.

The applicant must be physically present in the United States, and not already have a scheduled interview at a U.S. consulate abroad. Also, the provisional waiver is only available if the sole issue holding up a case is unlawful presence. Applicants who have criminal issues or other immigration violations cannot use the provisional procedure.

Individuals who are in immigration court or who have an order of removal or voluntary departure may not qualify unless they get special permission from the government and a court order resolving their case.

To be successful, applicants must show that denying the case would be an extreme hardship to their qualifying relative(s); the impact on the immigrant doesn’t count. Hardship factors can include family separation, economic hardship, medical issues, country conditions abroad, and any other difficulty or harm faced by the qualifying relative(s), if the waiver isn’t granted.

3. What does it mean that the waiver is "provisional?"

Even if a waiver is granted, the approval is "provisional." As a practical matter, this means that the government has reviewed the case and believes that the waiver should be granted, but there is no guarantee that a case will be successful if facts change or new information comes to light. For example, if an applicant had previous immigration violations or criminal history, the provisional waiver will be revoked.

If any new issues arise, and the applicant is still eligible for a waiver, he or she will be able to re-apply using the existing process, but will have to wait abroad for a decision on their case.

4. When can I apply?

The new rule goes into effect on March 4, 2013, and no filings will be accepted before that date. You can only apply for a provisional waiver after an immigrant petition has been approved. If you haven’t filed yet or you’re still waiting for a decision on a pending petition, you can’t apply for the provisional waiver—yet.

5. What else do I need to know about provisional waivers?

A provisional waiver is not a legal status, and even an approved waiver doesn’t provide work authorization, a social security number or a driver’s license. Having a provisional waiver will not protect you from deportation or any other consequences of being in the country illegally.

If an application for a provisional waiver is denied, there is no appeal. If you have more or better evidence to prove your case, you can re-file, with a new filing fee. Remember, not everyone can be sponsored or qualify for a waiver, and just as importantly, not everyone needs a waiver.

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