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I-601A Provisional Waiver

What Is the I-601A Provisional Waiver?

With a few exceptions, immediate relatives of U.S. citizens (spouses, parents and children under 21) who entered the U.S. without permission cannot become permanent residents based on a petition filed by a U.S. citizen immediate family member without leaving the United States. This is the penalty U.S. immigration law places on individuals who entered the U.S. without permission.

However, when such individuals leave the U.S. to apply for an immigrant visa abroad (based on a petition filed by their U.S. citizen family member), they trigger inadmissibility bars based on their unlawful presence. For those who have been unlawfully present for at least six months, leaving the U.S. subjects them to a “three-year (unlawful presence) bar.” For those who have been unlawfully present in the U.S. for at least one year or more, leaving the U.S. subjects them to a “10-year bar.”

Once either bar is triggered, the person cannot legally return to the U.S. for either three or 10 years unless s/he successfully applies for an “extreme hardship” waiver. This requires a showing that the applicant’s U.S. citizen or Lawful Permanent Resident parent or spouse would suffer extreme hardship if the applicant were not allowed to return to the U.S. Previously, applicants could only file the I-601 extreme hardship waiver after leaving the U.S., attending their immigrant visa interview, and being denied the immigrant visa for triggering an unlawful presence bar. This process often took many months, if not years. Worse, if the waiver was ultimately denied, the foreign national family member would be separated from his/her family members in the U.S. for either three or 10 years.  /Confronted with this risk, many people choose to remain undocumented in the U.S. and hope for immigration reform.

On March 2013 USCIS published regulations which implemented a new I-601A provisional waiver. The I-601A regulations did not change the law; they only changed when and where the waiver could be filed. By allowing applicants to file the waiver BEFORE leaving the U.S., they obtain a preapproval for the waiver before traveling back to their home countries to apply for their immigrant visas. Instead of being out of the U.S. for months or years waiting with such a high level of uncertainty, they can leave for a short time and return as a legal permanent resident to live with their U.S. citizen or Lawful Permanent Resident family members. These waivers are difficult to win and usually require a lot of work and documentation to be successful. Approval hinges on proving “extreme hardship” to certain qualifying family members.

Expansion of the I-601A Provisional Waiver in 2016: Includes more than Immediate Relatives of US Citizens and those with Final Orders of Removal 

On July 29, 2016, USCIS announced a final rule expanding the existing provisional waiver process. The new rules will go into effect on August 29, 2016, and the updated I-601A application form will be posted on USCIS’ official website on the same date. Notably, the new regulations expand eligibility for the provisional waiver process to all individuals statutorily eligible for the unlawful presence waiver. Until now, only immediate relatives of U.S. citizens were eligible to seek such provisional waivers before departing the United States for the processing of their immigrant visas. The new regulations expand the provisional waiver in the following ways:

  • Immigrant Visa Petitions: Previously, the immigrant visa petition had to be filed by an immediate relative. Now, all persons with an approved immigrant visa petition and available visa, regardless of visa category, will be eligible to participate in the provisional waiver program, if otherwise eligible.
  • Additional qualifying relatives: Previously, an applicant was required to show extreme hardship to a U.S. citizen spouse or parent. Now, an applicant can also show extreme hardship to an LPR spouse or parent.
  • Other grounds of inadmissibility: applicants can apply for provisional waivers even if USCIS has a reason to believe that they may be subject to other grounds of inadmissibility. But the final rule retains the provision that provides for the automatic revocation of an approved provisional waiver application if the DOS consular officer ultimately determines that the applicant is ineligible for the immigrant visa based on other grounds of inadmissibility.
  • Final orders of removal: individuals with final orders of removal, exclusion, or deportation are eligible for provisional waivers provided that they have already applied for, and USCIS has approved, an Application for Permission to Reapply for Admission into the United States After Deportation or Removal, Form I-212.
  • Reinstatement of removal: DHS must have actually reinstated a removal, deportation, or exclusion order in order for an individual who has returned to the United States unlawfully after removal to be ineligible for a provisional waiver on that basis.

While the regulations have greatly expanded the class of persons who can apply for the provisional waiver, it is important to note that the legal landscape of inadmissibility waivers is extremely complex, and many persons might still not be eligible under the new regulations. We strongly recommend setting up a consult with our experienced immigration attorneys to do a comprehensive analysis of all potential grounds of inadmissibility.

Who Can File an I-601A Provisional Waiver?

Since August 29, 2016, the following requirements need to be met before filing an I-601A Provisional Unlawful Presence Waiver:

  1. The applicant must have an approved family-based I-130 petition or employment-based I-140 visa petition;
  2. The applicant must demonstrate extreme hardship to a U.S. citizen or Legal Permanent Resident spouse or parent; &
  3. The only ground of inadmissibility that applies to the applicant is based on “unlawful presence.”

How to Prove Extreme Hardship

In order to have the I-601A provisional “extreme hardship” waiver approved, the applicant must document how his or her family member(s) will suffer if the waiver is not granted. The waiver requires a showing of “extreme hardship” to a US citizen or Lawful Permanent Resident spouse or parent, although suffering to children and other family members is relevant. Waiver applications should include detailed statements from the applicant and his or her family members as well as evidence of any and all medical and psychological conditions, financial hardship, emotional bonds and country conditions. Even if the different hardship factors individually do not rise to the level of “extreme,” an applicant can still prove “extreme hardship” if the totality of all hardship factors are extreme when considering the evidence in the aggregate. Consequently, it is essential to leave no evidence out of the packet and to assure that all potential hardship elements are fully explored and documented.

Contact the immigration attorneys of Becker & Lee LLP to learn more.