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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), and lawful permanent residents, who entered the U.S. without permission cannot get permanent residency based on a petition filed by a U.S. citizen or lawful permanent resident family member without leaving the United States. This is the penalty U.S. immigration laws place on individuals who entered the U.S. without permission.

For most individuals who entered without permission, the only way to get lawful permanent resident status is to leave the U.S., apply for an immigrant visa abroad (based on a petition filed by their U.S. citizen or lawful permanent resident family member) and return as a lawful permanent resident. However, the law also penalizes most individuals who have been “unlawfully present” in the U.S. For those who have been unlawfully present for at least six months, and leave the U.S., immigration law subjects these individuals 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, and leave the U.S., they are subject to a “10-year bar.”

Once either the three-year or 10-year bar is triggered, the person cannot come back legally for three or ten years unless an “extreme hardship” waiver is granted. Previously, these individuals could only file the I-601 “extreme hardship” waiver after they leave and their immigrant visa application is denied at a U.S. consulate abroad. This process often takes many months, if not years, and if it is not granted, the foreign national family member risks being separated for years from his or her family and life in the U.S. Confronted with this as their only option, many people choose to remain undocumented in the U.S.

In March 2013 USCIS published regulations which implemented a new I-601A provisional waiver. In August 2016 these regulations were significantly expanded. The I-601A regulations did not change the law; they only changed when and where the waiver can be filed. By allowing family members to file the waiver BEFORE they leave the U.S., these undocumented family members basically obtain a preapproval for the waiver before they travel 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 (hopefully just a few weeks or couple of months – but this depends on the U.S. Consulate where they apply for their visa) and return as a legal permanent resident to live with their U.S. citizen family members. These waivers can be 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.

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.