How Can New Jersey Undocumented Aliens benefit from the I-601A Provisional Waiver Process?
1. What does the provisional waiver do?
The Provisional Unlawful Presence Waiver allows for aliens who are inadmissible due to the unlawful presence bar to be legally admitted to the United States. In a sense, the Department of Homeland Security is forgiving or extending a pardon to the alien in light of the extreme hardship that his or her United States citizen relative would suffer in his/her three or ten year absence. It is by no means an automatic process. Approval is discretionary and will only be granted if the extreme hardship to the qualifying relative is amply demonstrated. Nevertheless, given the current state of the law, the provisional waiver process may be the most promising and realistic form of relief available to those who are here in the US illegally and unable to adjust status.
2. What is unlawful presence?
While oversimplifying what is an extraordinarily complex question, any alien who enters the United States without inspection, or who has stayed past the date on his or her I-94, is technically "illegal" or out of status. Once out of status, the alien is at risk of accruing unlawful presence. Unlawful presence is an important legal term of art because once the alien has stayed 180 days or more unlawfully present, he/she may potentially trigger the three-year bar upon departure from the United States. If the alien stays unlawfully present for one year or more, he/she is in danger of triggering the ten-year bar upon departure. These are obviously very drastic consequences that occur when the alien departs the US for any reason, even if to attend a consular interview for one's permanent residence.
3. Who is ineligible for the waiver?
Any alien who is deemed inadmissible to the United States for any other ground other than unlawful presence is ineligible to apply for the provisional waiver. Intending immigrants may still apply for a waiver, but it will have to be submitted from outside the United States. Unlike the provisional waiver process where the applicant would receive an answer-whether an approval or denial-inside the US, any individual who applies for a waiver from outside the US risks being barred from re-entering the US should the waiver be denied.
4. What are the requirements to apply for the Provisional Unlawful Presence Waiver?
To apply for the waiver, an alien must (1) be at least 17 years old, (2) be the spouse, child or parent of a U.S. citizen, (3) have an approved Form I-130 or Form I-360, (4) have a pending immigrant visa case with the Department of State with the filing fees paid, (5) be physically present in the United States, and (6) be able to demonstrate extreme hardship to an immediate relative US citizen spouse or parent. Breaking news: pursuant to President Obama's 2014 Executive Action on Immigration, USCIS will be revising its guidelines to allow the following additional categories of aliens to apply for the provisional waiver: spouses and children of lawful permanent residents and sons and daughters of US Citizens.
5. How does one show extreme hardship?
There is no precise definition of what is extreme hardship, but it is generally understood to be hardship that goes above and beyond the suffering experienced from mere separation. In deciding whether extreme hardship has been proved, United States Citizenship and Immigration Services (USCIS) will look at the following factors (which, please note, is not an exhaustive list):
(1) Health Related Hardship. If the US citizen relative would experience extreme hardship due to health related issues, USCIS will strongly take those circumstances into account. For example, the relative may receives special medical attention here in the US that would not be available in the immigrant's home country if he or she were forced to relocate with alien abroad.
(2) Financial Hardship. Examples of this include the loss or forced sale of a home or business, as well as poor employment prospects abroad.
(3) Educational Hardship. If the US citizen relative would lose educational opportunities due to having to live abroad with the alien, this should be examined and explained in depth.
(4) Personal Hardship: Examples of this include separation from one's own family here in the US as well as loss of community ties.
(5) Persecution: If the US citizen relative would face realistic persecution abroad, USCIS may take danger to the US Citizen into account.
6. Do I need to leave the United States to apply for the waiver?
No. While USCIS makes its decision on whether or not to approve the waiver, the alien in question would remain here in the United States. If the waiver is approved, then an interview abroad is scheduled and the alien would have to return to his or her home country for the immigrant visa interview.
7. Can an alien in removal proceedings apply for the waiver?
An alien in removal proceedings can only apply for the waiver if removal proceedings have been administratively closed and taken off of the EOIR calendar. Once the waiver is approved, and before returning to his or her country, the alien would need to contact the Office of the Principal Legal Advisor of ICE to request an order officially terminating the removal proceedings. If the alien fails to do this, or removal proceedings are not terminated, the waiver will be revoked upon leaving the United States.
8. What happens if the waiver is denied?
If the waiver is denied, then USCIS may refer the case to Immigration and Customs Enforcement (ICE) if the applicant falls within certain specific categories that are priorities for enforcement, such as applicants who have criminal convictions.
9. How much does the waiver cost?
The filing fee (including the fingerprinting fee) is $670 for Form I-601A.
We hope that you have enjoyed this article and learned at least one new thing or tip that you may not have known. To keep informed about the latest developments in immigration law, please subscribe to our blog feed by clicking on the "Subscribe To This Blog's Feed" button on the right. It is important to understand that the above is only general information and not legal advice. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, please complete the "Case Evaluation" box to the right of the screen to get in touch with one of our attorneys.