LEGAL GUIDE
Written by attorney Veronica Tunitsky | Oct 12, 2012

Understanding the I-601 Waiver Procedures for the Conflicted, Confused, and Frustrated!

What an exciting year 2012 has been for the I-601 Immigrant Waiver program, and it’s not over yet! Exciting, but confusing. Announcements, changes, anticipation, proposals, foreign-filed, Lockboxes … it’s been maddening!

Every day I work with people who are confused about what to do, where to file, what to file, and for good reason. In an effort to dispel some of this confusion, we have put together the following chart comparing the current I-601 process with the proposed Provisional Waiver process. The information offered is certainly not intended to be comprehensive or a substitute for legal advice as I-601 waiver cases – indeed most immigration cases – are complex and require a thorough legal analysis. Consider it a starting point.

A few points before we proceed. The Provisional Waiver Program is NOT IN EFFECT. The information below is based on the current Centralized Lockbox Filing rules and the Proposed Provisional Waiver rules. It should thus be used for educational purposes only!

1. Is the Program in Effect?

  • Current I-601 Waiver Process, aka “Centralized Lockbox Filing" (LBF): Yes

  • Proposed I-601A Provisional Waiver Process (PWP): NO NO NO!

2. Who is the Qualifying Relative?

  • LBF: US Citizen (USC) [1] or Lawful Permanent Resident (LPR) Spouse, Fiancée, or Parent. Children are qualifying relatives only for applications waiving criminal grounds of inadmissibility. Hardships to children can be used only as they relate to the hardships of the qualifying relative, i.e., the parent. US Citizen spouse (not fiancée) or parent.
  • PWP: US Citizen spouse (not fiancée) or parent.
  1. Does the Petitioner and Qualifying Relative Have to Be the Same Person?
  • LBF: No.
  • PWP: No. For example, the petitioner may be an LPR parent (not a qualifying relative under the proposed rules), but the qualifying relative may be your USC spouse.
  1. What grounds of Inadmissibility Can Be waived?
  • LBF: Most common grounds are unlawful presence in excess of 180 days, misrepresentation, and certain criminal grounds.
  • PWP: Only those whose sole ground of inadmissibility is unlawful presence may be able to apply for PWP.
  1. What Grounds of Inadmissibility Cannot be Waived?
  • LBF: False claims to US citizenship (made after 1996), almost all drug convictions, suspicions of drug trafficking, prior gang membership, prior frivolous asylum claims (filed after 1997), repeat immigration law violators under 212(a)(9)(C).
  • PWP:The only ground that can be waived under PWP is unlawful presence. If other bars exist, must use Lockbox Filing.
  1. What if Additional Grounds of Inadmissibility are Discovered?
  • LBF: A new I-601 would normally be required. Also, may be able to amend.
  • PWP:The waiver would be denied and applicant would have the choice to pursue Lockbox Filing.

7. I-130 or I-360?

  • LBF: Must be approved to file
  • PWP:Must be approved to file

8. Can I file the Waiver Once the I-130 is approved?

  • LBF: No
  • PWP:No

9. Physical presence in the US?

  • LBF: Must be abroad to file.
  • PWP:Must be in the US to file.

10. Do I Need Biometrics?

  • LBF: Must capture abroad.
  • PWP:Must appear for capturing in the US.

11. Must I Prove Extreme Hardship?

  • LBF: Yes
  • PWP:Yes
  1. What if the Applicant is Abroad?
  • LBF: File with the Lockbox in the US. Exception for Mexico: Until December 3, 2012, those applying in Mexico have the choice to file the I-601 with USCIS in Ciudad Juarez or with Lockbox in US.
  • PWP:Not eligible to use the PWP.

13. What Happens at the National Visa Center (NVC)?

  • LBF: Must have finished processing case with NVC.
  • PWP:Must have paid NVC filing fees

14. What if I Have Been Scheduled for a Visa Interview at the U.S. Embassy/Consulate?

  • LBF: Follow instructions received from NVC, attend the interview, be found eligible to file the waiver, file the I-601 Waiver with Lockbox.
  • PWP:Not eligible to use the PWP.
  1. What if I’m in removal proceedings that have not been terminated or dismissed?
  • LBF: Outside the scope of discussion.
  • PWP:Under USCIS consideration

16. What I My Removal Proceedings Have been Administratively Closed, but not Reopened

  • LBF: Outside the scope of discussion.
  • PWP:Not eligible to use the PWP.
  1. What if I have a Deportation Order?
  • LBF: Can File the I-212 Application together with I-601 at Lockbox or file stand-alone I-212 if removal is sole ground of inadmissibility.
  • PWP:Not eligible to use the PWP.
  1. How Many Times Can I File?
  • LBF: No limit
  • PWP:One
  1. Filing Location
  • LBF: Lockbox Filing
  • PWP:Service Center(s)

20. Who Makes the Decision on my Waiver?

  • LBF: USCIS
  • PWP:USCIS
  1. Will USCIS Deny My Waiver Outright?
  • LBF: While this seldom happens, a Request for Evidence or Notice of Intent to Deny is appropriate.
  • PWP:You should receive a Request for Evidence or Notice of Intent to Deny first.

22. If My Waiver is Denied, Can I Appeal or File a Motion to Reconsider?

  • LBF: Yes
  • PWP:No
  1. How Much is the Waiver Filing Fee?
  • LBF: $585
  • PWP:$585 plus $85 for biometrics
  1. Can the Filing Fee Be Waived?
  • LBF: No
  • PWP:No

25. Must I Depart the US

  • LBF: You are already abroad.
  • PWP:Yes, after receiving the decision on the waiver, you have to leave United States to complete the processing of the immigrant visa
  1. Would Approval of the Waiver Give me Immigration Benefits?
  • LBF: Yes, assuming the applicant is otherwise admissible and an immigrant visa is granted.
  • PWP:No.
  1. Is this New Law?
  • LBF: No, this is a change in procedure
  • PWP:No. If implemented, this is a change in procedure.

Stay tuned for updates as we learn more!

As always, wishing you peace.

Veronica Tunitsky

Attorney at Law

[1] USC = United States Citizen; LPR = Lawful Permanent Resident

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