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Provisional Unlawful Presence Waiver

On March 4, 2013, USCIS introduced the Provisional Waiver Program allowing certain immigrant visa applicants to apply for the provisional unlawful presence waiver in the United States. The Provisional Waiver Program continues to impact thousands of families in significant and meaningful ways by reducing family separation, uncertainty, and fear I-601 families faced while going through the traditional I-601 Waiver process. Might you too qualify for the I-601A Waiver? Find out by reading more here.

What are the basic requirements for the I-601A Provisional Waiver (PW)?

  1. PW applies only to those individuals who are at least 17 years of age and reside in the United States.  
  2. PW applies only to those individuals whose only ground of inadmissibility is unlawful presence.
  3. PW applies only to those individuals with approved I-130 Immigrant Relative or I-360 Petitions. 
  4. PW applies only to spouses, children, and parents of U.S. citizens (immediate relatives).
  5. PW requires a showing of extreme hardship to a US citizen spouse or parent.  Permanent Resident spouses or parents are not qualifying relatives for the I-601A Provisional Waiver (but are for the traditional I-601 Extreme Hardship Waiver).  Please read my memo for a more detailed comparison of the Provisional Waiver (I-601A) and the Extreme Hardship Waivers programs.
  6. PW requires that the applicant is in the United States to attend the biometrics (fingerprinting) appointment.

"Reason to Believe" I-601A denials based on criminal background

Up until recently, the USCIS policy has been to automatically deny any case where the agency had "reason to believe" that the person may be inadmissible because of a criminal background.  This broad-stroke approach received much criticism from the immigrant and legal communities at large because many of these individuals would not actually be inadmissible as their crimes fell under the petty offense exception or were otherwise not the types of crimes that would render a person inadmissible (a single DUI)  Fortunately, USCIS listened.

In a recent memo, USCIS advised that it will - on its own motion - reopen any I-601A case that was denied based on "reason to believe" that the individual is inadmissible because of a criminal background.  Thus, if you have been convicted of a crime that would NOT render you inadmissible - because it falls under the petty offense exception or is not a crime involving moral turpitude, etc. - it may be possible for you to qualify for the Provisional Waiver program.  

It is important to note that USCIS will deny your case if your criminal background renders you inadmissible because the Provisional Waiver program applies to individuals whose sole ground of inadmissibility is unlawful presence.  Thus, it is particularly important that you consult with an attorney before moving forward to determine whether you would qualify for the PW, the traditional I-601 waiver, or not at all.

"Reason to Believe" I-601A denials based on misrepresentation/fraud

While USCIS policy has changed regarding cases involving non-inadmissible criminal backgrounds, it is not clear whether the same is true for cases involving allegations of fraud or misrepresentation (for example, where a person gives a false name when attempting to enter the US).  The legal community has reported instances where USCIS has reopened such cases, but it remains to be seen whether the new policy will extend to all cases involving allegations of fraud or misrepresentation where such fraud or misrepresentation would not render someone inadmissible.

Some misconceptions about the PW program: must I still leave the United States to finish processing my case?

YES! The PW program allows applicants to file the I-601A PW in the United States, but each person is required to return to his or her home country to finish the processing of their immigrant visa. Each person will also be required to attend a medical exam and a consular visa interview before an immigrant visa can be approved.

Is the Provisional Waiver a sure thing?

No.  Keep in mind that the Provisional Waiver only waives prior unlawful presence.  Thus, if the consular officer determines that the applicant may be subject to other inadmissibility grounds - misrepresentation, old deportation orders, suspicion of drug use or gang membership, certain false claims to US citizenship, or crimes - he or she can invalidate the Provisional Waiver and require that the applicant applies for the traditional I-601 Extreme Hardship Waiver (if eligible).

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The information you obtain on this website is general and not intended to be legal advice.

You should consult an attorney for individual advice about your particular case.

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