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I-601A Provisional Waiver for Unlawful Presence

I decided to kick off my blog with a post about the new I-601 Provisional Waiver for Unlawful Presence which takes effect today - March 4, 2013.

In short, this new provisional waiver allows immigrant visa applicants who are spouses, children and/or parents of U.S. citizens to apply for a waiver BEFORE they leave the U.S. to process for their immigrant visa at a U.S. embassy or consulate. The provisional waiver may be obtained by filing form I-601A with the National Visa Center (NVC).

The purpose of this new provisional waiver is shorten the amount of time that applicants would be separated from their families while they wait outside of the U.S. for a decision by the Department of State (DOS) on their immigrant visa application and unlawful presence waiver. It is important to understand that this provisional waiver does not eliminate the requirement that the applicant leave the U.S. for processing of their immigrant visa. Instead, the provisional waiver breaks up the normal application process into two separate parts and requires the government to first make a decision on the unlawful presence waiver - thus giving the applicant the benefit of knowing whether the waiver will be approved BEFORE they leave the U.S. - which will be followed by the usual processing of the immigrant visa application.

To be eligible for a provisional unlawful presence waiver, an applicant must fulfill ALL of the following conditions:

  1. Be 17 years of age or older.
  2. Be an immediate relative of a U.S. citizen (not a preference category immigrant who has a visa available). An immediate relative is an individual who is the spouse, child (unmarried and under 21), or parent of a U.S. citizen.
  3. Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
  4. Have a pending immigrant visa case with DOS for the approved immediate relative petition and have paid the DOS immigrant visa processing fee (IV Fee).
  5. Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent.
  6. Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
  7. Not have been scheduled for an immigrant visa interview by DOS before January 3, 2013.
  8. Meet all other requirements for the provisional unlawful presence waiver, as detailed in 8 CFR 212.7(e) and the Form I-601A and its instructions.

This minor change in policy is actually a very big benefit for many immigrant visa applicants who were otherwise required to “roll the dice” by leaving the U.S. and applying abroad without knowing whether they would have to face a bar to inadmissibility which would prevent them from returning to the U.S. for up to 10 years. Understand, however, that even if an applicant's provisional waiver is granted, that does not guarantee that their visa application will be approved when they return home to process for their green card, since the applicant must still meet all of the existing eligibility requirements and must be admissible. Even so, having a waiver approved before departing the U.S. should provide the applicant with a certain measure of comfort and security in knowing that their application stands a very good chance of being approved and that they will probably be returning to the U.S. with an immigrant visa (green card).

You can read the full text of my post on the new provisional unlawful presence waiver on my website at:I-601 Provisional Waiver .

If you have questions about whether you qualify for the Provisional Waiver or if you need representation and assistance in filing your wavier, call South Florida Immigration Lawyer Sean D. Hummel at (954) 385-3111.

Categories: Immigration