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Provisional Waiver Denial: Don’t Confuse the 3 and 10-Year Bar With The Permanent Bar

On Behalf of | Oct 26, 2016 | Citizenship and Naturalization |

USCIS recently expanded the I601A program to make a wider class of people eligible. Although this is absolutely wonderful news, it remains crucial for individuals to ensure that they are in fact, eligible before applying. Not only is the I-601A a time consuming and costly undertaking, but it is also one that involves risk. A critical error or miscalculation can result in denial, or worse, permanent banishment from the United States.

There are many misconceptions out there about the Provisional Waiver. Some people, for example, believe or are under the misimpression that they will not have to return to their countries. This is simply not true. The whole point of the provisional waiver is to provisionally eliminate or cancel the unlawful presence bar so that the alien can go back to his/her native country for the immigrant visa interview and return right away. The applicant cannot stay in the US to complete the immigration process. If that were possible, he or she would not be doing the provisional waiver in the first place; rather, he or she would likely be filing an adjustment of status application.

The second major misconception is that the I-601A waives or solves every immigration problem. This is also not true. The I601A is intended only to waive or forgive the unlawful presence bar (which is triggered upon departure). It does not waive criminal convictions, fraud or misrepresentation, or the permanent bar. The permanent bar is especially nasty because there is no practical waiver to get rid of it, even if there is extreme hardship to a qualifying relative. A person subject to 212(a)(9)(C) is permanently inadmissible, which means he or she is not eligible to adjust status nor can the individual immigrate to the US. Only after staying outside for ten years can the person request permission or consent to reapply.

Some people have made the mistake of applying for provisional waiver when they were never eligible due to the permanent bar. If they were lucky, USCIS caught it early during the adjudication stage and denied the waiver under the “reason to believe” standard-which is no longer in effect. In some cases, however, USCIS did not spot the issue and approved the I-601A. The aspiring immigrant would go back to his country for the consular interview where the consular officer would bring the issue up. In that case, the applicant would essentially be stranded. Not only would the I601A be revoked, but the permanent bar would be invoked, stranding the applicant there without any remedy.

Situations such as these are precisely why it is so important to accurately and fully disclose everything to your attorney. Previous border encounters and previous stays in the United States should never be minimized or omitted during the consultation. For more information on hardship waivers, the three and ten year bars, and the permanent bar, please consult with our office.

The above is general information or opinion only. It is not legal advice nor does it create an attorney-client relationship. Please consult with an attorney.