Certain relatives of American citizens who entered the country illegally and need a waiver of unlawful presence before being eligible for permanent residency can submit an application with the United States Citizenship and Immigration Services (USCIS) and get a decision on their case before leaving the United States.
1. What is the rule and how can it help my family?
Under current law, many immigrants who entered the U.S. without inspection and admission or parole cannot apply for permanent residence (i.e. “green card”) in the U.S., and instead must finish the immigration process abroad. Unfortunately, leaving the country for consular processing - even with an approved family sponsored petition - automatically makes the intending immigrant subject to a penalty for their “unlawful presence,” potentially separating them from their family for up to ten years.
For some, but not all, the penalty can be waived, which means that the immigrants will leave the United States, knowing in advance that their case will probably be approved, and that they could be back with their families — as a permanent resident — in a short period of time.
2. Who can apply?
To qualify for the I-601A provisional waiver for unlawful presence you must meet all of the following requirements:
a. be physically present in the United States;
b. be at least 17 years old at the time of filing;
c. be the beneficiary of an approved I-130 visa petition;
d. have a U.S. citizen parent or spouse;
e. show that if USCIS were to deny your I-601A waiver, your U.S. citizen parent or spouse would suffer “extreme hardship“. The hardship factors include health-related issues, economic hardships, educational hardships, country conditions abroad, and any other difficulty or harm faced by the parent or spouse, if the waiver is not granted;
f. be willing to leave the United States to return to the U.S. Consulate to seek an immigrant visa;
g. have no other grounds of inadmissibility such as fraud, misrepresentation or convictions of crimes involving moral turpitude;
h. have never received an order of removal (or accepted voluntary departure without departing as required);
i. are not in removal or deportation proceedings;
j. are not an applicant for adjustment of status;
k. are not scheduled for an immigrant visa interview at a US consulate abroad.
3. Why is the I-601A called a “provisional” unlawful presence waiver?
Even if USCIS approves your I-601A waiver for unlawful presence, to get your green card you must leave the U.S. and go to a US Consulate abroad to apply for an immigrant visa. As a practical matter, this means that the government has reviewed the case and believes that the waiver should be granted, but there is no guarantee that a case will be successful if facts change or new information comes to light. If, for instance, USCIS approves your I-601A, the US Consulate could deny your immigrant visa application if it discovered other inadmissibility issues (criminal, fraud, prior order of removal or deportation).
4. What else do I need to know about provisional waivers?
A provisional waiver is not a legal status, and even an approved waiver doesn’t provide work authorization, a social security number or a driver’s license. Having a provisional waiver will not protect you from deportation or any other consequences of being in the country illegally.
If an application for a provisional waiver is denied, there is no appeal However, if you have additional or better evidence to prove your case, you can re-file, with a new filing fee.
5. Do I need to work with an attorney?
The immigration process can take months, even years, and government filing fees and other expenses are significant - it’s best to know your options before investing time and money. A thorough legal consultation should look at all aspects of your immigration history to find the best solution for your family. You should consider consulting with an immigration lawyer before starting the process to make sure that you qualify, and that the stateside waiver is the best option for you.