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TEMAS COMUNES

I-601A Provisional Waiver

 

A Guide to the New I-601A Stateside Waiver of Unlawful Presence for Immediate Relatives of United States Citizens.

On January 2, 2013, the United States Department of Homeland Security announced that illegal immigrants who are immediate relatives of United States Citizens (spouse, child between 17 and 21, or parent of a child over 21) but are unable to apply for a green card from within in the United States because they entered the United States without inspection and would be subject to a 3 or 10-year bar for unlawful presence if they departed the United States to apply for a green card at a United States Consulate in their home country, can submit a Form I-601A Application for a “Provisional Unlawful Presence Waiver” while they are still in the United States. The I-601A is available only to an individual whose sole basis of inadmissibility to the United States would be the 3 or 10-year bar for unlawful presence if they departed the United States. The Immigration Service will accept these applications effective March 4, 2013, from immigrants with approved immediate relative petitions. 

The Old Rule

An immigrant who entered the United States without inspection, a term that usually means simply walking across the border illegally, could not apply for a green card in the United States even if they were married to a United States citizen, except under certain rare circumstances. There was a special law first enacted in the 1990s called 245(i) that allowed many illegal immigrants to apply for a green card as long as a family or labor petition was filed for them before a certain deadline. The deadline was eventually set to April 30, 2001, and for that reason, the 245(i) law helps very few immigrants today. So, immigrants who were not eligible to file their green card applications in the United States were required to leave the country and apply for what is known as an “ extreme hardship waiver” at the Consulate. Very few immigrants willingly left the United States and their families to apply for a waiver in their home country because it could take more than a year for the application to be processed and they would be stuck in the home country for 10 years if their waiver application was denied.

The New Rule

Under the new rule, the immigrant must still leave the United States, but they will only have to leave to attend an interview at the consulate in their home country if their extreme hardship waiver is pre-approved. Instead of waiting outside the United States for potentially more than a year for their waiver applications to be decided and risk not being allowed back for 10 years, eligible immigrants can now wait in the United States while they live with their family and eliminate the risk of not being allowed to return to the United States upon departure. This means that the time they will be required to remain outside the United States could be reduced to a couple of weeks or even days.

Who Is Eligible?

To be eligible to apply for the stateside extreme hardship waiver in the U.S. under the new rule, the applicant must:

  • Be married to a U.S. citizen (Or in some cases, immigrants between 17 and 21 years old who have a U.S. citizen parent, or immigrants who have a U.S. citizen child over 21 years old)

  • Have an approved I-130 family-based petition

  • Be present in the U.S. at the time of applying for the waiver

  • Prove extreme hardship to his or her U.S. citizen spouse or parent

 

Who is Not Eligible?

  • Immigrants who have certain criminal convictions

  • Immigrants who have committed fraud, for example by entering the U.S. with a fake passport through an airport

  • Immigrants with final deportation or removal orders from an Immigration Court

  • Immigrants who have already been scheduled for an interview at their consulate based on an approved family petition.

 

The “Extreme Hardship” Test Applied to Waiver Applications

The legal standard for the I-601A waiver is the same as it is for an I-601 waiver under the old rule, and that is “extreme hardship.” There are decisions in immigration court cases from the Board of Immigration Appeals that define “extreme hardship” as being more than the normal hardship experienced by persons who are separated from their families. This means that simply filling out the form and submitting a brief statement claiming that the immigrant’s spouse and/or parent would suffer extreme hardship is likely to lead to a denial. To maximize the chance of obtaining approval for your waiver, you should provide lengthy affidavits, and present documentation from expert witnesses such as clinical psychologists and doctors supporting your extreme hardship case. If you decide to hire an attorney, Legal memorandums explaining the client’s case in light of applicable law, regulations, and court decisions can be utilized to help the Immigration Service officers decide positively and to understand why the approval should be granted.

Where to File?

Mail your Form I-601A to the Chicago Lockbox facility:

U.S. Postal Service
USCIS
P.O. Box 4599
Chicago, IL 60680

USPS Express Mail/Courier
USCIS
Attn: I-601A
131 S. Dearborn, 3rd Floor
Chicago, IL 60603-5517

What is the Filing Fee?

The fee is $585. If you are younger than 79, you must also pay $85 for biometric services.

If the Department of State has already scheduled my immigrant visa appointment, how do I determine if I am eligible to submit the I-601A to USCIS?

Applicants with an interview appointment letter from the National Visa Center dated before January 3rd, 2013 are not eligible to file the Form I-601A. Only applicants scheduled by the National Visa Center on or after January 3rd, 2013 for an upcoming initial immigrant visa interview are eligible to apply for the I-601A. “Scheduled” means the date on which NVC took the action to schedule the case – not the date of the visa interview appointment. NVC dates interview appointment letters on the day it schedules a case, so refer to the appointment notification letter to see when NVC took the scheduling action.

How do I get a copy of my immigrant visa (IV) application processing fee payment receipt?

You must submit proof of payment of your IV fee with your I-601A provisional waiver application to USCIS, attaching a copy of the receipt.

Follow the instructions below to obtain a fee receipt copy:

If the Immigrant Visa Application Fee was:

Paid Online: If you paid the IV fee online through the Consular Electronic Application Center (CEAC) Return to the CEAC site and print a copy of your receipt.
Paid by Mail: If you paid the fee by mail to the NVC, you must request a copy of your receipt from the NVC. To request a copy of your IV fee payment receipt, send an email to NVCI601A@state.gov with the subject line: "Fee Payment Receipt Request” and also include your NVC case number.

Will NVC schedule my IV interview appointment even if I submit an I-601A provisional waiver to USCIS?

No, after you submit your I-601A Provisional Unlawful Presence Waiver Application, USCIS will notify the National Visa Center (NVC) that it received your Provisional Waiver application and NVC will not schedule your immigrant visa interview appointment until USCIS informs NVC of its determination about your I-601A application.

What should I do once USCIS approves my I-601A provisional unlawful presence waiver?

Once USCIS approves your Form I-601A, it will inform NVC of its decision. If NVC has received all required forms and documents for your immigrant visa case, NVC will schedule your immigrant visa interview at the U.S. embassy or consulate you designated and notify you of your interview appointment date. You will then need to depart the United States to attend your immigrant visa interview at the designated location. If you fail to depart and attend your immigrant visa interview, the provisional unlawful presence waiver will not take effect, and the approval may no longer be valid.

 

What happens if my I-601A is denied?

If your provisional unlawful presence waiver is denied, you still have a couple of options:

  1. Reapply for the Waiver in the U.S. Your application may have been denied for a variety of reasons not having to do with your basic ineligibility for the waiver. For example, you may have failed to provide evidence proving an extreme hardship or you may have made other mistakes in the application. In this case, you may want to work with an experienced attorney to help you complete a new I-601A waiver application.

  2. Leave the Country and Apply for an I-601 Waiver. Another option may be to leave the U.S. and attend your visa interview abroad without any guarantee that you can reenter the U.S. immediately. You can then apply for an I-601 waiver for any reason barring your entry to the U.S.

 

Will I be Subject to Removal Proceedings if my I-601A Waiver Application is Denied?

The I-601 waiver would allow an individual to know before leaving the U.S. whether they would have to spend three or even ten years abroad before returning to the U.S. I-601 waivers are generally granted to individuals who can prove an extreme hardship on their family should they be forced to remain outside the U.S. While it may seem that many eligible individuals would be excited by the prospect of this waiver, there is also some concern that if an individual applies for the waiver, that person would essentially expose their illegal status in the U.S. triggering removal proceedings.

The standard for Removal Proceedings:

The Department of Homeland Security (DHS) stated it is focused on removing individuals who pose a threat to public safety or national security. This can include individuals who have a criminal history, has committed fraud, or is otherwise considered a threat. However, in its Final Rule, the DHS also emphasized that it does not envision going after I-601A applicants simply because they filed for a waiver and were rejected. Alternatively, if you pose a threat to health or safety, the DHS will prosecute you. It doesn’t matter if the DHS learns of the risk through an I-601A application or any other means.

PLEASE NOTE: THE ABOVE INFORMATION IS GENERAL AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. FOR SPECIFIC INFORMATION PERTAINING TO YOUR CASE, YOU SHOULD CONSULT AN EXPERIENCED IMMIGRATION ATTORNEY.

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