10 Facts About the New Provisional Waiver Process

Today, the USCIS  finally published the much-awaited rule on the unlawful presence waiver (I-601A), which will take effect on March 4, 2013.  We previewed this development in this blog in October 2012.

This is an enormous development.  The so-called stateside waiver process will allow thousands of immigrants to take the steps to regularize their immigration status.  The new waiver provisions do nothing to change the substantive requirement that an immigrant demonstrate that the denial of her permanent residence would cause extreme hardship to her U.S. citizen spouse or parent, but do eliminate the risk of long-term separation that has always been required to even seek the waiver.  By relocating decision-making of waivers to the United States and allowing immigrants to seek them in advance of their departure for their home country, this new regulation should reduce the numbers of immigrants without status in a humane way that honors family relationships.

The new waiver process will allow the immediate relatives of U.S. citizens to apply for a provisional unlawful presence waiver while they are still in the United States and before they leave to attend their immigrant visa interview abroad. Under the old rule, applicants who are not eligible to adjust status in the U.S. to become lawful permanent residents must leave the U.S. and obtain an immigrant visa and unlawful presence waiver abroad. The current process involved a long wait and a lot of uncertainty as the applicant had to prove extreme hardship to U.S. citizen parent or spouse in order to win a waiver for unlawful presence to get back to the United States. The new process is intended to reduce the reluctance of non-citizens who may wish to obtain a green card through their marriage to U.S. citizens or relationship to a U.S. citizen parent, because the applicant would no longer be deterred by lengthy separation and uncertainty of success imposed by the process.

Under the new rule, an applicant must meet all of these requirements to qualify for the waiver:

  • Applicant must be present in the U.S. at the time they file for the waiver;
  • Applicant must prove hardship to U.S. citizen spouse or parent;
  • Applicant must be barred from readmission based only on unlawful presence in the U.S. and have no other grounds of inadmissibility;
  • Applicant must be a beneficiary of an approved immediate relative petition;
  • Applicant must have a case pending with the Department of State based on the approved immediate relative petition and paid the immigrant visa processing fee;
  • Applicant must depart from the United States to obtain the immediate relative immigrant visa; and
  • Applicant must be able to prove extreme hardship to her or his U.S. citizen spouse or parent.

After reading through the 148-page rule, here are a few things you should know about the new process:

  • The provisional waiver is limited to immediate relatives of U.S. citizens who can prove extreme hardship to the U.S. citizen:

Applicants for the waiver must be able to prove extreme hardship to a U.S. citizen spouse of parent. The extreme hardship to a U.S. citizen spouse or parent is a discretionary determination based on a totality of circumstances.

Many commentators argued for the provisional unlawful presence waiver to apply to certain additional family and employment based visa preferences. After all, the I-601 waiver is not limited to immediate relatives of U.S. citizens. However, DHS justifies limiting the provisional waiver process to immediate relatives of U.S. citizens because immigrant visas are always available for this category as opposed to preference categories. The DHS also hopes that the new rule would also encourage long-term LPRs to naturalize, so that their spouses, parents and children under the age of 21 can become immediate relatives and also benefit from the process.

  • The waiver is limited to waiver for unlawful presence, and not other grounds of inadmissibility:

Non-citizens who have other grounds of inadmissibility besides unlawful presence are not eligible for this new process but may nonetheless be eligible for the waiver and ultimately, an immigrant visa, through the existing process.

  • The waiver is available to non-citizens in removal proceedings who have their proceedings administratively closed or terminated:

Non-citizens in removal proceedings should have their proceedings administratively closed or terminated and apply directly to the USCIS for the waiver. For cases that have been administratively closed, the non-citizen should seek termination AND receive termination before departure from the U.S. to avoid triggering other bars of inadmissibility. The waiver is unavailable to applicants who have received deferred action but have final orders of removal or other grounds of inadmissibility beyond unlawful presence. Individuals with final orders of removal should seek to have their proceedings reopened and then administratively closed, in order to apply for the waiver with USCIS.

  • Interviews still scheduled abroad:

Under the new process, immediate relatives who have already departed the United States must pursue their waiver from abroad. Also, immediate relatives who are still in the U.S. must still depart the U.S. for the consular immigrant visa process. However, the immediate relatives who are in the U.S. can apply for the provisional waiver from within the United States and wait until it has been approved to depart the country so that they do not face lengthy separation from their families.

Non-citizens who have already been scheduled for their immigrant visa interviews at consulates abroad are ineligible for the provisional unlawful waiver process. However, if the DOS scheduled the immigrant visa interview after the publication of the final rule, the non-citizen can apply for a provisional unlawful presence waiver. An individual can also qualify for the waiver process in the U.S. if she or he has a new immigrant visa cases because DOS terminated the immigrant visa registration associated with the previous interview and they have a new immediate relative petition filed by a different petitioner.

  • The waiver is not limited to first-time filers:

The filing of the provisional unlawful presence waiver is not limited to those filing for the first time as DHS agrees that the one-time filing limitation that was initially proposed was too restrictive. Rather, when an applicant’s waiver has been denied or withdrawn, the applicant can file a new waiver with the appropriate fees. This is especially pertinent to cases where circumstances have changed since the first filing or the first filing was done through notarios or ineffective assistance of counsel.

  • Who is not eligible?

USCIS  has specifically stated that the following non-citizens would be ineligible for a waiver:

  1. Applicants under the age of 17
  2. Applicants subject to other grounds of inadmissibility
  3. Applicants who have already scheduled an immigrant visa interview abroad before the publication of this rule
  4. Applicants who do not have an immigrant visa pending with the Department of State, based on the approved immediate relative petition and have not paid the immigrant visa processing fee
  5. Applicants in removal proceedings, unless the proceedings are administratively closed
  6. Applicants subject to final orders of removal
  7. Applicants with pending applications to USCIS for adjustment of status
  • No non-removability clause:

For individuals who are denied a waiver, DHS will follow the NTA issuance policy in effect at the time of adjudication  This means that individuals whose waiver request is denied or who withdraw before final adjudication will only be referred to ICE for removal proceedings if he or she is considered a removal priority by the agency, such as having a criminal history, engaging in fraud, misrepresentation, national security or public safety threat.

  • No appeal process:

There is no appeal for denial of an I-601A waiver. However, in the event of denial, there are several alternate avenues such as filing a new form I-601A with the required fees or filing a form I-601 after attending the immigrant visa interview abroad and after the department of State determines that the individual is inadmissible. The I-601 can be appealed to the Administrative Appeals Office of CIS.

  • No right to employment authorization or parole upon the filing of a waiver:

A pending or approved provisional waiver does not create lawful immigration status, extend an authorized period of stay or protect non citizens from removal or grant any other immigrant benefit such as employment authorization or advance parole.

  • Filing fees for the process will be $585, plus a biometrics fee of $85.

There are no fee waivers available for the process.

The new procedure does not take effect until March 4, 2013.  Before filing any waiver application, it is advisable that you consult with an immigration lawyer.

68 thoughts on “10 Facts About the New Provisional Waiver Process

    1. I have a ?….So my hubby was approved the waiver and was asked to leave to his country and had his interview n the officer said u are approved wait for ur visa in 4 day…well know its been 18days that he has not resived his visa and they said his document s are under review to make sure all documents are correct and prepared what dose this mean….

  1. My husband left of his own accord over 2 years ago. He was never under any removal orders, in fact he was completely off the grid because he never had any issues with the law. We have seemingly made things worse for ourselves by being honest in reporting his actual time of presence in the U.S. and by his departure simply because we had been informed that that was necessary to file the I130. Now once again they’ve changed things to help those who are still present,but nothing for our situation and we have been apart for over 2 years other than my trips to Guatemala to visit. He had his interview on Dec 12,2012 and at that time we were told everything was in order except for the affidavit of support,but not to worry because I could file my 2012 taxes in Jan and he could bring copies to a 2nd scheduled appointment on Jan 16,2013. So I busted butt getting everything filed with IRS early,paid a fortune to express mail the docs to him only to have the embassy call him today to cancel his Jan 16 appointment and directing him to a website instructing us on how to file the I. 601A which we do not qualify for! I do not understand! In de we were told the AOS financials had to be wrapped up and approved before being given the go ahead to file the I601 waiver and now we are being told to file the waiver and that he can present the financial evidence once the waiver is approved and it all seems to be linked with the provisional waiver which we do not qualify for! I just need my husband! Now I don’t knowi
    F they want me to apply for the provisional waiver or just simply go ahead with the I601. Does anyone have any insight?

    1. I’m In the same boat my husband left voluntarily and is under administrative proscess and they tell him this could take weeks months or even years that’s no more info???? I and family and coworkers wrote letters to congressmen senators and president . Went to consulate every week .. My only hope is that this was not in vain and others will Benifit from this law… Ur husband will come home and it’s Gods plan , rejoice for those who will be blessed and god will bless u…

      1. Thanks for that reminder-you are right and I am so very thankful there are finally some changes being made to this process. I’m so happy for those that will benifit from this because I don’t think anyone should have to endure living without their loved ones. And It’s crazy that that alone is not considered an “undue hardship”! I hope our husbnds are able to come home soon and I pray that one day there will be no boundery lines on love.

  2. Ok i have a ? My husband and I are currently waiting until the Provisional Waiver becomes effective. Since he will be able to wait here for his Residency will he be able to keep his job? Ive been a little curious about that. Thanks-

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  4. I want to know which documents we will be needed for provisional unlawful waiver process rule?

    I want to know how much fees immigration lawyer will be charged to us for filling the provisional unlawful waiver process?

    I have request to you can you informed me my answer of the question to my email.

  5. HI

  6. I’m married to US citizen and with all the risks involved I’m eligible to file for 601A waiver. It should be a good news for our family.However, due to the fact that I believe there is a real chance of passing immigration reform I”m torn apart. if the reform would include ANY path to citizenship allowing me to obtain visa and a status of prospective immigrant, would that be considered adjustment of status based on which i could apply for permanent residency through my husband? I know this is all speculation now..but I’m just curious. thank you

  7. What if u get approved for provisional waiver & you return to your home country for the interview & for visa & during the the interview you admitted that u present fake I.D at the border or in any branch of government to work & survive while you we’re here, then they will file fraud against you & now You’ll get stranded to your home country…. What’s the sense of leaving the US to pick up your VISA outside the US to enter the US again… If the USCIS really want u to have the VISA they can give it while youre still here, why they need to send you out first?

    1. The waiver is not for fraud. People who have potential inadmissibility due to fraud should not seek a provisional waiver, nor should they travel abroad unless they intend to apply for a fraud waiver while there. The government has not chosen to assist those who committed fraud at this time.

      1. In 2004 my husband’s nonimigrant visa was revoked at an international bridge in TX. He signed some documents that he doesn’t know what they were. He re-enter to US crossing the river.

        Do you think he has a chance if he apply for an unlawful presence waiver? What would you recomnend him to do. THANK YOU!

  8. hi iam the aplicant i will like to apply for I601a but i dont know how to demostrate extreme hardship for my us citizen wife can please help iam a father of 3 kids an ive been married 9 years will like no to separete my wife

    1. just google waivers letters approve that way u can get an idea of what to write i did my waivers husband and we got it approved, and remember every case is different just use the letter to have an idea how you can do it, keep in mind that you have to send prove of every hardship you claim

    1. i did my husbands waiver the I-601A and they received it on may first and we just got a response agust 7th. im posting this for people who is wondering how long does it take, i know is different for everyone but im just sharing my experience to give u an idea of how long the process could take, by the way we are approved 🙂

      1. That is exciting news. What did you apply for as extreme hardship? I am just curious because as of today my husbands papers are being filed so we are in the waiting period. I like to hear the success stories and only wish for the best for everyone applying!

      2. I am glad you are approved we are passing for the same situation I hope my husband get approved too so after you get your appointment in his country how long he took to get back to usa

      3. Your post was made back in August, I’m just curious to find out if your husband got his interview date yet. I’m on the same boat but have not received anything other than my “receipt”. I’m nervous to have to go to Ciudad Juarez so I’m wondering how long the wait outside the US is. Thanks.

  9. Thank you very much for this blog.been on the web all day trying to find something meaningful to what me and my wife is going through right now and i believe this is the best place to do this.I was placed in removal proceedings and granted voluntary departure but did not know much about this waiver(my fault) till I had left the country.my question now is,since I am already out of the country,I have an approved I-130,can we apply for the waiver and if so,are we to apply from the USA or outside the country.Thank you very much

    1. ok im not a lawyer or anything like that, but i have been doing my husbands paper work and we did our waiver here in the usa, and got it approved already, we are only waiting for the nvc to schedule the appointment, but since u have left already u would need to file from outside the united states because if you attempt to reenter illegally then you wouldnot be able to apply for a waiver anymore, im assuming your only problems is that you enter without inspenction

      1. can you give me any pointers… we had an attorney to begin with, but life became hard, and the hardships dont allow money for a lawyer any more… we were approved and they sent me the I 797 form… talked about filling out I 601A form. i know nothing about process….. Help Please! i dont want to do anything wrong.

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  11. My husband and I filed for the I-130 in Sept 2013 at the embassy in Guatemala. It got approved Dec 2013 and got told that we need to file for a waiver. I am living in Guatemala with our 1 year old daughter while my husband is in the us. We chose to file in the state when my husband returned. We will file first week of Feb 2014. My question is how long does the I-130 approval last? Just a little worried that the waiver process will take to long. One last question, What will happen with the I-130 approval if the waiver will take a long time to be processed? Thanks!

    1. If you did not come to US yet, not entered illegally, not deported or any illegal doings in the US then you dont need a waiver. You need to to apply for I485 adjustment of status interview w/ the embassy and come here in the US 2gether w ur minor kid/s.

  12. yes my husbands been in mexico for almost a year now and we gonna get the waiver i601 application turned in next week i got 4 kids and i got evidence of me and 2 of my kids for hard evidence how long will it take for him to get it approved and how long for him to beable to come home please let me know asap thanks

    1. I’m interesting did anyone went back to their country afther approved from waiver and how long it took them to come back to US? Thank you .

      1. Jana I want to know the same answer. My husband has his fingerprint appointment may Fri.30th. What happens after that??

      2. My other half left after being approved for his waiver n his has went to his interview n was approved for his visa n he was to get it with in 4 day n know we are on our 18th day n no visa yet,,, they said his document s are under review….
        Good Luck cuz I feel they lied to us

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  14. HI! I applied for waiver form I601 for my husband since September 30th and each time I look on line and wrote letters it says its still being processed should we be concerned does it take that long? Any advice on what to do? Thank you!

    1. Hi, although the USCIS has stated that it is their goal to complete these cases in six months or less, we are finding that they take longer than that. I would not be concerned at this point. If you would like to discuss it with one of our lawyers, please email us at consult@benachcollopy.com.

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  17. I would be gratefull if someone can help me with advice: My present status is third step of process in getting permanent stay in US; and I’m confronted with final stage of getting green card; I hired a lawyer and they have been helpfull through the process and now I would need your advice: should I adjust my status which cost around 1000$ + lawyer fee and medical exam or go back to native country ( flight ticket 200$) and finish with inerview and medical exam there; what would be more affordable option

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  20. My husband got granted a hardship visa in 2012, due to my being bipolar and our son having ADHD. But I found out he was cheating on me with various so called women since way before we even started the immigration , process, so I want to know if I divorce him for being a fraud, will he get his permanent residency taken away?????

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