In January of 2013, DHS issued its Final Rule on the Stateside Provisional Waiver for Unlawful Presence, now commonly known as the I-601A waiver. The purpose of this waiver was for certain relatives of U.S. citizens and, as of August of 2016, all individuals statutorily eligible for an immigrant visa to be able to apply for an unlawful presence waiver as part of their immigrant visa process from within the United States and wait for USCIS to adjudicate the waiver before leaving the country for their consular interview.
Prior to this new process, those who were not eligible to adjust their status - apply for residency/Green Card - while in the United States had to travel abroad and obtain an immigrant visa. If they had accrued any unlawful presence while in the U.S., they also needed to apply for a waiver, which was only available after they appeared for their immigrant visa interview abroad and a Department of State (DOS) consular officer determined that they were inadmissible to the United States. In some cases, it could take as long as three to ten years for people to legalize their status, causing prolonged family separation. With the I-601A waiver, this process changed.
In an effort at keep families together, the I-601A waiver allows families to know in advance of departing the United States whether the waiver portion of their immigrant visa case will be approved. The waiver is called a “provisional” waiver because while it must be filed from within the U.S. and will be adjudicated before the intending immigrant leaves the U.S. to attend the consular visa interview, it will only waive the unlawful presence once the applicant actually leaves the U.S. But that's scary. What if I can't come back in?
The purpose of this new process is to cut down on the wait times and prolonged family separation. Could there be issues? Of course. But with everything legal, so long as your paperwork has been filed correctly and all that needs to be disclosed has been, you or your family member shouldn't have a problem returning to the U.S. as a resident.
So who is eligible for this waiver?
In order to be eligible for this stateside provisional waiver, applicants must have an immigrant visa case pending with the DOS because they are either:
The principal beneficiary of an approved Form I-130, Petition for Alien Relative; an approved Form I-140, Petition for Alien Worker; or an approved Form I-360, Petition for Amerasian, Widow(er); or Special Immigrant, and have paid the immigrant visa processing fee to DOS, and you are currently in the process of obtaining your immigrant visa;
Have been selected by DOS to participate in the Diversity Visa (DV) Program (that is, you are a DV Program selectee) and are currently in the process of obtaining your immigrant visa; OR
Are the spouse or child of a principal beneficiary of an approved immigrant visa petition and have paid the immigrant visa processing fee to DOS, or you are the spouse or child of a DV Program selectee (that is, you are a DV Program derivative), and you are currently in the process of obtaining your immigrant visa.
Additionally, the applicant must be residing in the U.S. and MUST ONLY BE INADMISSIBLE FOR A PERIOD OF UNLAWFUL PRESENCE in the United States that was:
More than 180 days, but less than 1 year, during a single stay (INA section 212(a)(9)(B)(i)(I)); or
One year or more during a single stay (INA section 212(a)(9)(B)(i)(II)).
However, if you have an order of deportation or your deportation case has been administratively closed, you are not eligible for the provisional waiver. But don't be discouraged, there are other avenues that could apply to you.
What does unlawful presence mean? It means that you are or a loved one are in the U.S. without permission because you either entered without inspection - such as crossing the border - or your legal status has expired. When you enter the U.S. with a visa, you are provided with a certain amount of time you are allowed to remain in the U.S. - this is usually stamped on your passport at entry. When you remain in the U.S. beyond that time, you are considered an overstay and begin to incur unlawful presence.
It also very important to note that you are only eligible to waive one incident of unlawful presence. So for instance, if you entered the U.S. without inspection in 2005 and left the U.S. over a year later and then re-entered the U.S. without inspection once again, this waiver would not be for you since you have unlawful presence accrued from multiple stays.
What if I used a fake passport when I entered the U.S. or have a criminal history in the U.S.? This waiver is not for you. The provisional waiver only covers unlawful presence and nothing else. If you have multiple arrests that make you inadmissible, you will need a different waiver. If you are inadmissible because of fraud or other charges, you will need a different waiver. The provisional waiver will not work for you unless you first get the other inadmissibility charges waived. It is a process, but it can be done so long as you are willing to put forth the effort, time, and money.
What else is required for the provisional waiver? In addition to meeting the eligibility requirements listed above, you must be able to show that a denial of their waiver would cause extreme hardship (medical, economic, psychological, country conditions) to your U.S. citizen and/or lawful permanent resident spouse or parent. This can seem overwhelming to show but with proper guidance, it can be done.
At Florida Legal we have years of experience with Provisional Unlawful Presence Waivers and look forward to helping you or your loved one throughout your process. Please feel free to contact our office if you have any question or want to discuss the specifics of you case. We look forward to working with you.
If you would like additional information on the Provisional Unlawful Presence Waiver, feel free to visit: https://www.uscis.gov/family/family-us-citizens/provisional-unlawful-presence-waivers OR https://www.uscis.gov/i-601a.