1. In general: What is the I-601A provisional waiver?
Many people who entered the United States illegally have established lives in the United States, and have married US citizens. Because of their unlawful entry, they are not eligible to get their green cards unless they leave the United States and return to their home countries. Once they leave the United States however, they are subject to a 3 or 10 year bar to returning to the United States, depending on their circumstances. The only way to avoid the bar is to obtain a “waiver” of their unlawful presence.
A “waiver” in this situation is basically a pardon from the United States government for their unlawful entry to the US. In order to obtain the waiver, a person must show that if they are not allowed to return to the United States, their US citizen’s spouse or parent will suffer “extreme hardship.” (See link above right.)
In the past, the procedure to obtain the waiver required immigrants to remain in their home country while the waiver application was being processed. This meant that a person would have to apply with USCIS to be classified as the family member of a US citizen, then return to their home country, attend their visa interview, be found ineligible to return to the US because of their “unlawful presence”, submit their waiver application, and wait for their waiver application to be decided. If the waiver was approved, they were finally able to return to the U.S. to be with their families. If not, they would be stuck in their home countries to wait out the 3 or 10 year bars, or to apply again.
This entire process took at the minimum several months, and often years. Immigrants were separated from their families in the United States for long periods of time, creating undue hardship because of the separation. Many, if not most eligible immigrants instead chose to remain in the United States without legal status, rather than risk being stuck in their home countries for up to 10 years because of this waiver process.
Happily, the process has now been changed for certain applicants. Eligible immigrants will now be able to file their relative petitions with USCIS, and beginning March, 2013, once the petitions are approved, they will be able to submit the waiver application through the National Visa Center, to have the waiver decided on a conditional basis prior to their leaving the United States for their visa interview. Upon approval of the conditional waiver, the case will be forwarded to the appropriate Embassy of United States in the immigrant’s home country, where it will be scheduled for the immigrant visa interview. However, because the waiver application will have already been approved, the person will immediately be eligible for the immigrant visa (no 3 or 10 year bar). This means that the person will only have to go to their home country for the amount of time necessary to attend their visa interview and obtain their immigrant visa, which should only be a matter of weeks, not months or years.
This is a very general explanation of the basic changes to the unlawful presence waiver process. The change is only a change in the process. There is no change to the laws themselves. As is typical with all Immigration issues, many restrictions do apply to this change in the regulation. For example, the new regulation only applies to “immediate relatives” of US citizens. Spouses of lawful permanent residence( green cardholders) are not eligible. USCIS has indicated that if the provisional waiver process works well for this initial group of immigrants, it may be expanded in the future to include family members of permanent residents. For now, however, they are not included.
In addition, the new waiver process is only available for those immigrants who only need a waiver for their illegal entry and unlawful presence in the US. They cannot be inadmissible to the United States for any other reason such as a prior deportation, prior criminal activity, medical reasons, or other grounds of inadmissibility.
This is a detailed and complicated process, yet the benefits of the new rule mean that many families will be able to legalize their status without having to endure years of separation. You should consult a competent immigration attorney to see whether you can take advantage of the new rule.
2. The Provisional I-601A Waiver Process vs. Traditional I-601 Waiver Filing Process
The standard I-601 waiver process: Traditionally, if an immigrant enters the US illegally and cannot prove legal entry, the immigrant cannot apply for a green card in the US through the adjustment of status process but must interview for their green card at a consulate abroad. The catch – once you leave the US, you can trigger the 10 year bar of re-entry and need to apply for a 10 year bar waiver. The consulate interview will happen, the immigrant is refused the visa but is usually informed that the immigrant can now apply for a waiver (which means their qualifying relative for the waiver in the US files the case in the US for the immigrant) but must stay outside of the US until the waiver is decided and approved. The immigrant is then contacted again by the consulate to either send in more documents to finish processing or attend a second interview to update the case and make sure the immigrant is eligible to enter the US now that the waiver has been obtained.
This process can typically take 6 months for the waiver to be decided in the US (the immigrant must stay outside the US during this time) plus another 1 -2 months until the consulate can finalize the Immigrant Visa, issue it, and allow the immigrant to enter the US and finally be reunited with their loved one(s). This is a long time to wait for a decision and a long time to be separated from family in the US, although this is much shorter than the waiting periods as recent as 1-2 years ago.
The provisional waiver: I-601a process: In March 2013, USCIS announced a new policy to help keep those married to US citizens avoid the longer waiting periods that the traditional I-601 waiver process creates that requires that the immigrant wait abroad for the waiver decision to be made. The provisional waiver process allows the immigrant to apply for the I-601 waiver for unlawful presence (whether 3 or 10 year bar) ahead of time, while still in the US and prior to the consulate interview abroad. The immigrant stays in the US with their spouse while the waiver is being decided, drastically reducing the time the immigrant has to be separated from their spouse. When the waiver is approved, the immigrant travels to their interview at the consulate abroad and if successfully interviews with the successful provisional waiver already approved and no other grounds of inadmissability are found by the consulate, the immigrant is abroad for merely days, not months. Their lives are not uprooted, long term family care does not have to be arranged and jobs are not lost. It is an ideal situation for many immigrants and their families.
The main problem with the provisional waiver program is that it is severely limited to who qualifies to take advantage of it.
Limits of the provisional waiver program:
* The provisional waiver or I-601a filing only covers unlawful presence. No criminal waivers, misrepresentation waivers (for lying to CIS or using fake documents to enter the US), prostitution waivers, etc.
* The Applicant for Waiver must currently be in the US. If the immigrant is already abroad, the immigrant cannot re-enter the US to file the waiver.
* An Immigrant Visa filed by an Immediate Relative (Spouse or Parent of a US citizen) must be approved first.
* The qualifying relative for the waiver, not only just the Immigrant Visa, must be a US citizen spouse or parent of the immigrant. Permanent resident spouses cannot be qualifying relatives for the I-601a, only for traditional I-601s.
* Immigrants who have been arrested or convicted of even a misdemeanor may be ineligible for a provisional waiver if CIS believes that this crime could be the basis for a criminal ground of inadmissability
* Immigrants with removal orders do not qualify.
These are just some of the main disqualifications from the provisional waiver program. There are others. Make sure you consult with a competent, licensed immigration attorney about whether you qualify for the I-601a vs the I-601 process before filing anything!
If the immigrant has to file a waiver case based on any other ground than unlawful presence, then the immigrant must go through the traditional I-601 waiver process. For example, did you use a fake green card or fake documents to get into the US? That’s misrepresentation and you would have to file a misrepresentation waiver as well as a 10 year bar waiver if you have stayed in the US for a year or more without valid immigration status (i.e., overstayed or been undocumented over a year in the US and then leaves the US – even if to interview for a green card at a consulate abroad).
Extreme Hardship
The key term in the provision is “extreme” and thus, only in cases of real actual or prospective injury to the United States national or lawful permanent resident parent or spouse will the bar be removed. Common results of the bar, such as separation, financial difficulties, etc., in themselves are insufficient to warrant approval of an application unless combined with much more extreme impacts. Applicants are encouraged to submit as much documentary evidence as possible proving that failure to receive the waiver requested would result in extreme hardship to your US citizen spouse or parent.
Consulates differ on what factors in a case are more persuasive than others. The largest consulate in the world with the most waiver applications is Ciudad Juarez, Mexico. As of 2005, the CIS office attached to this consulate, considered the following as types of factors that are relevant to deciding whether the US citizen parent or spouse will suffer “extreme hardship” (the consulate will also consider other factors, not listed here):
HEALTH –
Ongoing or specialized treatment requirements for a physical or mental condition;availability and quality of such treatment in your country, anticipated duration of the treatment; whether a condition is chronic or acute, or long-or short-term.
FINANCIAL CONSIDERATIONS –
Future employability; loss due to sale of home or business or termination of a professional practice;decline in standard of living; ability to recoup short-term losses;cost of extraordinary needs such as special education or training for children;cost of care for family members (i.e., elderly and infirm parents).
EDUCATION –
Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time for grade; availability of special requirements, such as training programs or internships in specific fields.
PERSONAL CONSIDERATIONS –
Close relatives in the United States and /or your country; separation from spouse/children; ages of involved parties;length of residence and community ties in the United States.
SPECIAL FACTORS –
Cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures.