NJ Immigration Attorney For Provisional Waiver | How to Apply for the I-601A

The Provisional Waiver is also known as the I-601A Waiver, not to be confused with an I-601 waiver. In actuality, the I-601 is the USCIS immigration form that foreign nationals complete to apply for a waiver, including criminal waivers, fraud waivers, and unlawful presence waivers. What makes the I-601A special is that it enables immigrants who are not otherwise eligible to adjust their status here to receive a provisional or prospective decision on their unlawful presence waiver here in the United States before departing for their consular interviews abroad. In contrast, if an individual who is subject to the unlawful presence bar is not eligible for a provisional waiver, he or she will normally have to process the waiver outside the United States utilizing the traditional I-601 form. The disadvantages of having to apply abroad for a waiver are numerous including most notably, the processing time it takes for USCIS to adjudicate the waiver as well as the impact of an unfavorable result once the individual has already left the US and triggered the bar.

What is the Unlawful Presence Bar?

The unlawful presence bars are loosely or otherwise known as the three and ten year bars that were put into law by the 1996 Illegal Immigration Reform and Responsibility Act (IIRAIRA). Under the law, if an alien has accrued 180 days or more of, but less than 1 year, of "unlawful presence" and then departs the United States, he or she will trigger the three-year bar from re-entry. If the alien accrues one year or more of "unlawful presence" and then departs the US, he or she will trigger the ten-year bar from re-entry.

Eligibility for the Provisional Waiver

In order to be eligible for the I-601A, an applicant must be able to meet all of the below requirements:

  • Be physically present in the US at the time of application and comply with all biometrics appointments
  • Be 17 years or older
  • Be in process of a consular case with the Department of State because you
    • are the principal beneficiary of an approved I-130; an approved I-140; or an approved I-360 who has paid the immigrant visa processing fee;
    • have been selected by the Department of State to participate in the Diversity Lottery Program; or
    • are the spouse or child of a principal beneficiary of an approved immigrant visa petition who has paid the immigrant visa processing fee to DOS, or the spouse or child of a Diversity Lottery selectee
  • Must show extreme hardship to a US Citizen or Lawful Permanent Resident spouse or parent
  • Be subject only to the three-year bar under INA 212(a)(9)(B)(i)(I) or the ten-year bar under INA 212(a)(9)(B)(i)(II)
  • Meet all the other requirements as detailed in 8 CFR 212.7(e) and Form I-601A and the I-601A instructions

Recent Changes To The Rule Makes Waiver More Available But Also Potentially More Complicated

In August of 2016, the provisional waiver program was expanded to include all eligible immigrant categories, that is, it is no longer limited to family petitions sponsored by Immediate US Citizens. In addition, those with removal orders are no longer automatically precluded from applying for a provisional waiver. However, recent changes have not necessarily made the filing or approval of waivers any easier. If anything, the new changes, including elimination of the "reason to believe" denials, have made I-601A practice even more complex. The new Trump administration and stance on enforcement has also influenced the posture of government attorneys and the process for those stuck in Immigration Court as well as for those who may need to reopen their immigration court cases because they have outstanding removal orders. Considering the stakes, risks and the many things can go wrong during the process, we encourage you to call us to arrange for an appointment. Given the scarcity of new immigration related programs, the I-601A Provisional Waiver may be of tremendous benefit, but it needs to be handled correctly.