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I-601 Provisional Unlawful Presence Waiver

Introduction

The new Provisional Unlawful Presence Waiver, which goes into effect on March 4, 2013, allows immigrant visa applicants who are spouses, children and/or parents of U.S. citizens to apply for a waiver before they leave the United States 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. 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.

Background

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States are required to travel abroad to process for their immigrant visa, and then return to the U.S. However, if the immediate relative applicant was unlawfully present in the U.S. (Out of Status) for more than 180 days before they departed, they are required to file for and get a waiver of inadmissibility in order to get around and be excused by the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act (INA) before they can return to the U.S. This process creates a classic “catch-22" by putting immigrant visa applicants in the position of having to leave the U.S. (and risk denial and not being able to return) in order to find out whether they will be allowed to return. In other words, even though their immigrant visa application may be approvable in every respect, they will still be prevented from returning to the U.S. because their waiver was denied and they were subjected to the 3 or 10 year bar and required to remain outside of the U.S. for the duration of the bar period. While this current waiver process is still in effect, the new provisional waiver gives the applicant the option of filing the waiver in the U.S. and waiting for an approval before they travel abroad for their immigrant visa interview.

Bottom Line

The new provisional waiver does not change the current immigrant visa process. Even if your waiver is approved, you will still have to leave the U.S., attend your interview at a consular office abroad, and then return to the U.S. with your immigrant visa. If the NVC approves your waiver, it will only take effect after you leave the U.S. and a U.S. consular officer decides that you are otherwise admissible (ie. no other grounds of inadmissibility apply against you) following an interview on your immigrant visa application. You are advised to NOT depart the U.S. until the NVC gives you notice of your scheduled immigrant visa notice at the designated U.S. Embassy or Consulate abroad. Note that you are not eligible for a provisional waiver if you are in removal (deportation) proceedings UNLESS, at the time you file your I-601A waiver application, your removal proceeding was administratively closed.

Eligibility:

In order to obtain a Provisional Unlawful Presence Waiver, you must:

Be at least 17 years of age

Be an immediate relative of a U.S. citizen, defined as a person who is pouse, child or parent of a U.S. citizen.

Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.

Have a pending immigrant visa case with DOS for the approved immediate relative petition and have paid the DOS immigrant visa processing fee.

Prove that refusal of your admission to the U.S. will cause extreme hardship to your U.S. citizen spouse or parent.

Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.

Not have been scheduled for an immigrant visa interview by DOS before January 3, 2013.

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.

You are NOT eligible for the new provisional waiver if:

You are subject to another ground of inadmissibility, other than unlawful presence.

You already accrued more than 180 days of unlawful presence in the U.S. and then left and returned to the U.S, or, you were ordered removed (deported) and you left and returned to the U.S.

The DOS took action before January 3, 2013 to schedule your interview on your Immigration Visa application on the approved I-130 petition, even if your immigrant visa interview has been canceled; OR you did not appear for the interview OR your interview was rescheduled on or after January 3, 2013. Note that it is not the date that your interview is scheduled that is important here; rather, it’s the date that the DOS first took action to schedule your interview. If that was on or before January 3, 2013, then you are NOT eligible for the provisional waiver. However, you may still file a Form I-601, Application for Waiver of Grounds of Inadmissibility, from outside the United States AFTER you have been interviewed for your immigrant visa, and the consular officer has found that you are inadmissible for a ground that may be waived by the I-601.

You are in removal (deportation) proceedings before a U.S. Immigration Court, and the proceedings have not been administratively closed OR placed back on the docket.

Extreme Hardship to Qualfiying Relative

If you are eligible, in order to qualify for the provisional waiver, you must show that your U.S. citizen or permanent resident spouse OR parent would suffer from "extreme hardship" if you were not allowed to remain in the U.S. Note that children are NOT qualifying relatives, and thus you cannot qualify by showing extreme hardship to your children.

"Extreme hardship" is not a definable term of "fixed and inflexible meaning"; establishing extreme hardship is "dependent upon the facts and circumstances of each case." Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 565 (BIA 1999). In Matter of Cervantes-Gonzalez, the Board of Immigration Appeals (BIA) listed the factors it considers relevant in determining whether an applicant has established extreme hardship in connection with a 212(i) waiver. While this is a different waiver (for fraud and misrepresentation at the time of entry), it should serve as a useful guide in determining what the government will consider when determining your provisional waiver application. These factors include

The presence of a U.S. citizen or lawful permanent resident in the U.S.

The qualifying relative's family ties outside the United States

The conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative's ties in such countries

The financial impact of departure from this country; and

Significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. Id. at 565-566. The BIA indicated that these factors relate to the applicant's "qualifying relative."

In Matter of 0-J-0-, 21 I&N Dec. 381, 383 (BIA 1996), the BIA stated that the factors to consider in determining whether extreme hardship exists "provide a framework for analysis," and that the "[rlelevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists." It further stated that "the trier of fact must consider the entire range of factors concerning hardship in their totality" and then "determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation." (citing Matter of Ige, 20 I&N Dec. 880, 882 (BIA 1994).

If you need representation and assistance in preparing and filing your Provisional I-601A Unlawful Presence Waiver, call South Florida Immigration Lawyer Sean D. Hummel at (954) 385-3111.