Will I need a Waiver?
When an applicant is applying for lawful permanent residence (or the green card)either here in the U.S. through the process called Adjustment of Status or at a U.S. consulate abroad his or her entire history is reviewed. It is up to the immigration officer to determine whether he or she is “admissible” for lawful permanent residence. Our U.S. immigration laws tell us who and which type of conduct might make a person “inadmissible” or in other words keep them from receiving their lawful permanent residence or green card. People may be inadmissible if they have problems related to their health or criminal record. They might also be inadmissible for immigration offenses that relate to visa fraud, prior deportation, false claims to U.S. citizenship, smuggling or unlawful presence in the U.S.
Some issues of inadmissibility might make a person ineligible to immigrate or be admitted to the U.S. Others can be forgiven or “waived” if the applicant meets certain requirements. Applicants who are eligible to apply for a waiver can submit Form I-601 or Form I-601A (provisional waiver) to apply for the waiver. USCIS (the immigration office) is not required to approve the waiver, but rather the applicant needs to convince USCIS that he or she is eligible and meets the standard laid out in the rules.
I-601A provisional waivers are very specific waivers for applicants who need to do consular processing (applying abroad at a U.S. consulate) and are currently residing in the U.S. The provisional waiver is decided here in the U.S. before the applicant leaves the country for his or her interview. Generally in all types of waiver cases, USCIS will look at two things when deciding whether a person deserves a waiver: the character of the person applying and whether the applicant’s U.S. citizen or lawful permanent resident spouse or parent will suffer extreme hardship if the applicant is not allowed to remain in the U.S. It is very important to provide evidence that the hardship is financial, emotional, and/or physical. The laws around I-601 waiver applications are very complicated and for this reason it is important to seek out the advice of a qualified immigration attorney.
What is a Provisional Waiver (I601A)?
People who have been in the U.S. too long in unlawful status or who may have entered the U.S. unlawfully may be subject a three or ten year bar upon re-entering the U.S. once they leave the U.S. These bars are only triggered when a person departs the U.S. For this reason if someone is eligible to adjust status here in the U.S., then that process is often preferred. For applicants whose only option is to receive lawful permanent residence by consular processing (through a U.S. consulate abroad) and who will trigger one of the bars discussed above there is a process called a provisional waiver available for certain persons who are the spouses, sons, or daughters of U.S. citizens or lawful permanent residents.
Prior to 2013 when an applicant wanted to apply for a waiver of unlawful presence through a consulate, he or she would need to leave the U.S. This was a painful period of family separation as the applicant would need to leave his or employment and risked never returning to the U.S. if his or her waiver was denied. Often this time period was over a year. Thankfully, in 2013 USCIS introduced the I-601A provisional waiver. Generally, the provisional waiver allows an applicant to apply for a waiver of unlawful presence here in the U.S. while the application is pending. When the provisional waiver is approved then the applicant leaves for his or her immigrant visa interview in his or her home country. The time period someone is abroad is shortened to only several weeks while the immigrant visa is pending. It allows applicants to maintain their daily lives and if they are found ineligible to remain in the U.S. and discontinue consular processing.
What is the process for a Provisional Waiver (I-601A)?
The provisional waiver process (I-601A) is only available for applicants who are applying for their green cards through consular processing to waive unlawful presence. It cannot be used to waiver other issues of inadmissibility (fraud, false claims to U.S. citizenship, criminal grounds). To apply for a provisional waiver an applicant must be there spouse, son, or daughter of a U.S. citizen or a lawful permanent resident AND demonstrate to USCIS that the U.S. citizen or lawful permanent resident family member would suffer extreme hardship if the applicant was not in the U.S., and warrant (or deserve) a favorable exercise of discretion. Meeting the standard of extreme hardship is not easy, but can be met with the assistance of a qualified immigration attorney.
The process begins when a I-130 visa petition is approved and sent to the National Visa Center, then followed by payment of the Immigrant Visa Fee. Then an applicant is ready to submit Form I-601A to USCIS. In the package the applicant must document extreme hardship. Generally, that includes a detailed sworn declaration from the qualifying relative (spouse, son, or daughter of a U.S. citizen or a lawful permanent resident) explaining very specifically how he or she will suffer emotionally, physically, and economically without the applicant in the U.S. Evidence of that hardship should be submitted and evidence of the favorable equities that outweigh the unfavorable equities.
If the I-601A is approved, then the applicant continues the process with the National Visa Center. Once the case is complete with the National Visa Center, then the case is sent to the consulate abroad and the immigrant visa interview is scheduled. For more information about 601 or 601A waivers feel free to contact Kasturi Law, LLC at 630-392-8101.