Understanding the Provisional Unlawful Presence Waiver
The I-601A Provisional Unlawful Presence Waiver is a crucial tool for addressing the inadmissibility of individuals due to unlawful presence in the United States. This waiver is especially vital for those who must leave the U.S. to obtain an immigrant visa through consular processing.
Introduction to the I-601A Waiver:
Upon entering the U.S., individuals are typically given a specific date by which they must depart, as noted on Form I-94. If an individual overstays this period, they begin to accrue unlawful presence. Those who entered the U.S. without inspection or parole, such as by illegally crossing a border, accrue unlawful presence from their first moment of entry. Accumulating 180 days of unlawful presence triggers a three-year bar to reentry into the U.S., while one year of unlawful presence results in a ten-year bar.
Generally, individuals accruing unlawful presence must leave the U.S. and seek reentry through a U.S. consulate or embassy. For noncitizen spouses of U.S. citizens who entered with inspection or parole, but have accrued unlawful presence, there is an exception that may allow them to adjust status within the U.S. without having to leave. But noncitizen spouses, unmarried children under 21, or parents of U.S. citizens or Lawful Permanent Residents (LPRs) who entered without inspection or parole, including Deferred Action for Childhood Arrivals (DACA) recipients, must seek a Provisional Unlawful Presence Waiver before leaving the country to complete their consular processing at a U.S. consulate or embassy. This process has potentially discouraged many from leaving the U.S. to pursue immigrant visas due to fears of not being able to return.
There are two programs that do not require noncitizen spouses and children of U.S. citizens who entered without inspection or parole to leave the country for consular processing. These include 1) Keeping American Families Together (KAFT) and 2) Military Parole in Place. Both programs have strict requirements. KAFT requires noncitizen spouses of U.S. citizens to be continuously present in the U.S. for at least 10 years as of June 17th, 2024, and to have obtained a legally valid marriage to a U.S. citizen as of June 17th, 2024. Military Parole in Place only applies to the noncitizen spouses, parents, and unmarried children under the age of 21 of U.S. citizens serving in the military.
The Emergence of the I-601A Waiver:
The I-601A Provisional Unlawful Presence Waiver, introduced on March 4, 2013, was a groundbreaking development. It allowed certain immigrants to apply for a waiver of inadmissibility due to unlawful presence while still in the U.S., before departing for their immigrant visa interview abroad.
Necessity of the I-601A Waiver:
For individuals unable to adjust their status within the U.S., obtaining an immigrant visa requires traveling abroad. Those who have accrued more than 180 days of unlawful presence are inadmissible under Section 212(a)(9)(B) of the Immigration and Nationality Act (INA). Previously, waivers for such inadmissibility could only be applied for after an immigrant visa interview abroad, leading to prolonged family separations. The I-601A waiver mitigates this issue by enabling individuals to apply for a waiver while still in the U.S., thus shortening the time families spend apart.
However, the provisional waiver process does not alter the immigrant visa process. Even if the I-601A waiver is approved, individuals must still depart the U.S. to complete their immigrant visa processing at a U.S. Embassy or Consulate abroad. Approval of the provisional waiver does not grant eligibility for adjustment of status in the U.S. but allows for a smoother transition to immigrant visa processing abroad.
Eligibility Criteria:
To qualify for the I-601A waiver, applicants must meet several criteria:
Physical Presence: Be physically present in the U.S.
Age Requirement: Be at least 17 years old.
Pending Immigrant Visa Case: Be the principal beneficiary of an approved Form I-130, Form I-140, Form I-360, or Diversity Visa Program selectee. To be the principal beneficiary, the applicant must be an immediate relative (the spouse, parent(s), or unmarried children under age 21 of a U.S. citizen or Lawful Permanent Resident (LPR)).
Extreme Hardship: Demonstrate that denial of admission would cause extreme hardship to a U.S. citizen or lawful permanent resident Qualifying Relative (QR). QRs include spouses and parents only.
Note: U.S. citizen or LPR children may sponsor their parents for an I-130, but cannot be the QR for an I-601A and so cannot gain approved Provisional Unlawful Presence Waivers for their parents.
Unlawful Presence: Show that inadmissibility is solely due to unlawful presence of 180 days or more accrued in the U.S.
Additional Requirements: Applicants must meet any other conditions specified in 8 CFR 212.7(e) and Form I-601A instructions.
Ineligibility Conditions:
Applicants may be ineligible if they:
Do not meet all eligibility criteria including requirements specified in the Form I-601A instructions
Are in removal proceedings that have not been administratively closed.
Have a final order of removal, exclusion, or deportation, unless they have already been granted approval for Form I-212.
Approval and Revocation:
Approval of the I-601A Provisional Unlawful Presence Waiver does not:
Grant any immigration benefits or legal status.
Protect the applicant from removal.
Guarantee the issuance of an immigrant visa.
Ensure admission into the U.S. by Customs and Border Protection.
Allow for interim immigration benefits such as work authorization.
An approved waiver is automatically revoked if:
The Department of State (DOS) terminates the immigrant visa application process.
U.S. Citizenship and Immigration Services (USCIS) revokes the underlying approved immigrant visa petition.
The consular officer finds the applicant ineligible for the visa on other grounds.
The applicant re enters or attempts to reenter the U.S. without inspection.
Comparing the I-601A with the Regular I-601 Waiver
The I-601A waiver, filed while the applicant is still in the U.S., seeks to reduce family separation time. In contrast, the regular I-601 waiver is filed after an applicant is found inadmissible during their immigrant visa interview abroad. Both waivers address unlawful presence, but the I-601A allows for provisional approval while still in the U.S., while the regular I-601 waiver is processed after the applicant has left the country.
Strengthening Your Application
Detailed Documentation: Provide comprehensive evidence to support claims of extreme hardship, such as medical records, financial documents, psychological evaluations, and personal affidavits.
Legal Representation: Consider hiring an immigration attorney to ensure the application is thorough and persuasive.
Consistent Follow-Up: Regularly check the application status and promptly respond to any Requests for Evidence (RFE) from USCIS.
Potential Outcomes and Their Implications
Approval: If the waiver is approved, the applicant can proceed with leaving the U.S. for their consular interview abroad. However, approval does not guarantee visa issuance or U.S. admission.
Denial: If your I-601A waiver is denied you can reapply or appeal. Denials often stem from insufficient evidence of extreme hardship or other grounds of inadmissibility.
Request for Evidence (RFE): USCIS may issue an RFE if additional information is needed. Comprehensive responses are crucial to avoid delays or denials.
Administrative Closure or Withdrawal: If the application is administratively closed or withdrawn, the applicant may reapply but must start the process anew, including paying all fees again.
How an Immigration Lawyer Can Help
Navigating the I-601A Provisional Unlawful Presence Waiver process can be extremely complex and challenging, with life-altering stakes for applicants and their families. An experienced immigration lawyer can significantly improve the chances of success and streamline the process by assessing eligibility, building a strong case for extreme hardship, correctly completing and submitting application forms and documentation, accurately responding to requests for evidence (RFEs), and advising on consular processing and immigrant visa interviews.
Connect with an Immigration Attorney
Shillig Law's immigration attorneys are experts on the latest immigration processes. They are trained to evaluate your eligibility for all immigration programs and can address any questions related to your specific situation. Contact us today!
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Conclusion
The I-601A Provisional Unlawful Presence Waiver is a valuable tool for individuals facing inadmissibility due to unlawful presence. It offers a pathway to mitigate extended family separations while awaiting an immigrant visa. Understanding the eligibility criteria, application process, and potential outcomes is crucial for applicants seeking to successfully reunite with their families in the U.S. after consular processing. With proper preparation, thorough documentation, and legal guidance, individuals can enhance their chances of waiver approval and facilitate family reunification and stability. For detailed information, applicants should consider seeking legal advice to navigate this complex process effectively.
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