On January 3, 2013, the DHS published a regulation which will, as of March 4, 2013, allow persons who entered the U.S. without inspection (or who are otherwise ineligible to adjust their status in the U.S.) to apply for "form I-601A provisional waivers" to excuse their unlawful presence in the U.S.
Once their waivers are approved by the USCIS, they will be eligible to attend their appointments for immigrant visas ("green cards") abroad. The aim of this new program is to avoid having immediate relatives submit I-601 waivers abroad, and then be separated from their families for months or even years while their waivers are pending.
Instead, they will obtain their waivers before leaving the U.S., be interviewed abroad and return to their families in the U.S. within a few days.
The following set of Frequently Asked Questions (FAQ) explains many of the complications involved in the new provisional waiver process:
1. Who qualifies to submit a provisional waiver in the United States?
To qualify, a person must be at least 17 years old, and be the beneficiary of an approved I-130 visa petition as an "immediate relative" of a U.S. citizen.
Immediate relatives are spouses, parents and children of U.S. citizens. To be considered a "parent", the sponsoring son or daughter must be at least 21 years of age. To be considered a "child", the person must be under 21 years of age, although many persons over 21 years of age may still be classified as children under the Child Status Protection Act (CSPA).
The law requires that in order to obtain an waiver, the applicant must demonstrate "extreme hardship" to a qualifying relative. Qualifying relatives must be spouses or parents who are U.S. citizens or lawful permanent residents (LPRs).
However, a person with only an LPR spouse or parent, while eligible to apply for a regular I-601 waiver abroad, is ineligible to qualify for an I-601A provisional waiver in the U.S. Persons who are in the numerically-limited family or employment-based preference categories do not qualify for provisional waivers, although the USCIS indicates that the program could be expanded at some point in the future.
2. What grounds of inadmissibility does the waiver apply to?
The waiver applies solely to inadmissibility based on "unlawful presence" in the U.S. Applicants must be subject to either the 3-year or the 10-year bar once they leave the U.S.
Persons subject to the "permanent bar" can not submit a waiver application until they have remained outside the U.S. for 10 years. Hence, they are ineligible for provisional waivers.
Persons who are inadmissible under another section of the law (e.g.fraud, criminal convictions, etc.) are also ineligible for provisional waivers.
3. What if a person is already outside the U.S. or is scheduled for an immigrant visa interview outside the U.S.?
Such persons are ineligible to submit provisional waivers.
4. What if a person is currently in removal proceedings or is subject to a final order of removal?
Such a person may participate in the provisional waiver program only if his removal proceedings have been "administratively closed" and have not been recalendared as of the time that the waiver is submitted to the USCIS.
Persons in removal proceedings who have applied for Deferred Action (DACA) may apply for provisional waivers after USCIS grants their DACA applications, but only if they meet all the requirements for filing a provisional waiver and their removal proceedings have been administratively closed.
If the USCIS approves a provisional waiver for a person in removal proceedings, the person must seek termination or dismissal of the removal proceedings by the Executive Office for Immigration Review (EOIR), and this must be granted before the person departs the U.S. for their immigrant visa interview abroad. Failure to do so could prevent the person from obtaining an immigrant visa and returning to the U.S. Persons under final orders of removal are ineligible to participate in the provisional waiver program.
5. Can a person who had a previously scheduled immigrant visa interview (scheduled by the State Department prior to January 3, 2013) abroad that he did not attend submit a provisional waiver?
The answer is usually no. However, there are exceptions.
Here we quote the DHS:
"An alien who is ineligible to apply for a provisional unlawful presence waiver because of a previously scheduled immigrant visa interview may still qualify for a provisional unlawful presence waiver if he or she has a new DOS immigrant visa case because 1) DOS terminated the immigrant visa registration associated with the previously scheduled interview, and they have a new immediate relative petition; or 2) the alien has a new immediate relative petition filed on his or her behalf by a different petitioner."
"DOS" in the above paragraph stands for the "U.S. Department of State".
6. Is it possible to waive the fees for an I-601A provisional waiver ($585) or for the biometrics ($85)?
7. Is premium processing available for an I-601A waiver?
No, but applicants can request expedited adjudication of a provisional waiver in accordance with current USCIS expedite guidance.
Generally, the USCIS takes about 4-6 months to approve an I-601 waiver. With an expected influx of many thousands of I-601A provisional waivers, expect waiting times to increase, perhaps dramatically, since the USCIS has no plans to boost the number of officers adjudicating hardship waivers.
8. If a person's I-601A waiver is denied, is it possible to appeal?
No. However, although it is not possible to appeal an I-601A denial or submit a Motion to Reopen (The USCIS reserves the right to reopen or reconsider an I-601A denial on its own motion.), it is possible to refile a waiver after a denial.
Again, we quote the DHS:
"If an individual’s provisional unlawful presence waiver request is denied or withdrawn, the individual may file a new Form I-601A, in accordance with the form instructions and the required fees. The applicant’s case must still be pending with DOS, and the applicant must notify DOS that he or she intends to file a new Form I-601A. In the case of a withdrawn Form I-601A, USCIS will not refund the filing fees because USCIS has already undertaken steps to adjudicate the case."
"Alternatively, an individual who withdraws his or her Form I-601A filing or whose Form I-601A is denied can reapply for a Form I-601 Application for Waiver of Grounds of Inadmissibility,with the USCIS Lockbox,after he or she attends the immigrant visa interview and after DOS conclusively determines that the individual is inadmissible. If the ground(s) of inadmissibility identified by the DOS consular officer can be waived, the individual can file a Form I-601 along with any supporting documentation or evidence needed to demonstrate eligibility for the waiver and ultimately the immigrant visa..."
"Applicants and their attorneys or accredited representatives also are reminded that they may address or correct mistakes by supplementing a pending Form I-601A waiver request with additional evidence or correcting the request before USCIS makes a final decision in the case. USCIS will take into consideration any evidence received when making the decision."
9. Can a person who submits an I-601A waiver be placed in removal proceedings?
Although the USCIS states that it "does not envision initiating removal proceedings against aliens whose Form I-601As are denied or withdrawn prior to final adjudication", it reserves the right to do so if the person is considered to be a "DHS enforcement priority – that is, if the individual has a criminal history, has committed fraud, or otherwise poses a threat to national security or public safety."
"DHS reminds the public that the filing or approval of a provisional unlawful presence waiver application will not: (1) confer any legal status; (2) protect against the accrual of additional unlawful presence; (3) authorize an alien to enter the United States without securing a visa or other appropriate entry document; (4) convey any interim benefits (e.g., employment authorization, advance parole, or eligibility to be paroled based solely on a pending or approved Form I-601A); or (5) protect an alien from being placed in removal proceedings or removed from the United States, in accordance with current DHS policies governing initiation of removal proceedings and use of prosecutorial discretion."
10. What are the chances that your I-601A waiver will be granted?
This, of course, depends on the facts of your case, and how well your I-601A waiver is documented to demonstrate "extreme hardship" to your qualifying relatives. Do not submit 5 or 6 exhibits and expect to receive an approval.
Here, it is absolutely essential that your attorney know the legal basis for establishing "extreme hardship", and that he or she has prepared many successful I-601 waiver applications.
Extreme hardship can be emotional, financial, medical, etc. and hopefully a combination of these and many other factors.
Last year, the USCIS denied 34%, or a little more than one out of every three, I-601 waivers.
Persons who have recently married are usually well-advised not to submit waivers. However, their chances of approval rise markedly after they have children and a house, especially if the breadwinner would be forced to remain at home to care for the child(ren).
Also, many of those denied by the USCIS prepared their applications on their own or used the services of a notario or an immigration "consultant". This is not a wise course of action.
Hire an experienced immigration attorney. But how do you choose the right attorney to prepare your I-601A waiver? A good place to start is by watching the following video.
Carl Shusterman served as a Trial Attorney for the U.S. Immigration and Naturalization Service (INS) until 1982 when he entered the private practice of law. He manages a seven-attorney immigration law firm based in Los Angeles. In addition, he is the webmaster of http://shusterman.com/ (English) and www.inmigracion-abogado.com/ (Spanish). Mr. Shusterman has testified as an expert witness before the Senate Immigration Submittee. He is a former chairman of the American Immigration Lawyers Association (AILA), Southern California Chapter and served as a member of AILA’s National Board of Governors (1988-97). Mr. Shusterman is a Certified Specialist in Immigration and Nationality Law, State Bar of California and has earned the highest rating (“AV”) in legal ability and ethics from the prestigious Martindale-Hubbell Legal Directory. He has served as a member of the Immigration and Nationality Law Advisory Commission for the California State Bar. Mr. Shusterman has been named as one of the top 15 corporate immigration attorneys in the U.S. by Human Resource Executive magazine and as a SuperLawyer and, for the past 15 years, has been voted by his colleagues in the immigration bar as one of the Best Lawyers in America.