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Introduction to Provisional Waiver

The I-601A Provisional Waiver allows certain immediate relatives of U.S. citizens to apply for a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States if they can demonstrate that being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative “extreme hardship”.

The Provisional Waiver allows certain immediate relatives of U.S. Citizens to apply for a waiver of certain grounds of inadmissibility. To be granted a provisional waiver, you must show that being separated from your U.S. citizen spouse or parent would cause extreme hardship to him or her. your U.S. Citizen relative.

If you have been “unlawfully present” in the United states for over 6 months, and leave the United States, you are deemed inadmissible to re-enter the U.S. for three years from the date of your departure. If you leave the United States after having been “unlawfully present” for over 12 months, then you are deemed ineligible to re-enter for ten years starting from the date of your departure.
Before the provisional waiver law went into effect, you were required to leave the country first, and then apply for a waiver of your “unlawful presence.”

This application process was problematic because once outside of the United States, you would have to apply for a waiver of unlawful presence. First, even if the waiver of unlawful presence was granted, you would have to wait for 6 months or so to be permitted to return to the United States. If the waiver was not granted, then you would have to wait 3 years or 10 years outside of the United States depending on how long you had been unlawfully present in the United States.

With the provisional waiver law, your “unlawful presence” can be waived before you leave the United States and you will know prior to leaving the United States. In other words, the provisional waiver allows you to significantly minimize the risk that you will be required to wait in your country of nationality for some time before returning to the United States.

Process for Provisional Waiver

The first step in the immigration process for everyone is for the U.S. citizen petitioner (sponsor) to mail a visa petition to USCIS on Form I-130. Once your I-130 is approved, you can send form I-601A. From there, you will have to pay some fees and make a request that your case be transferred. Finally, the Department of State will schedule a consulate interview abroad.

Filing Fees

I-130 Petition – $535
I-601A Waiver – $630 + $85 biometrics (this is for fingerprinting and a comprehensive background check)
Upon approval of I-130, you must pay a $230 application fee, $88 affidavit of support fee, and $165 immigrant visa fee.

Eligibility Requirements
To be eligible for a provisional unlawful presence waiver you must fulfill ALL of the following conditions:

Be 17 years of age or older.

Be an immediate relative of a U.S. citizen (not a preference category immigrant who has a visa available). An immediate relative is an individual who is the spouse, child (unmarried and under 21), or parent of a U.S. citizen.

Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.

Have a pending immigrant visa case with DOS for the approved immediate relative petition and have paid the DOS immigrant visa processing fee (IV Fee).

Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent.

Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.

Not have been scheduled for an immigrant visa interview by DOS before January 3, 2013.

Must be inadmissible solely as a result of unlawful presence.

You are ineligible if:

You are subject to one or more grounds of inadmissibility other than unlawful presence.

DOS initially acted before January 3, 2013 to schedule your Immigrant Visa (IV) interview for the approved immediate relative petition upon which your provisional unlawful presence waiver application is based, even if your immigrant visa interview has been canceled, you failed to appear for the interview, or your interview was rescheduled on or after Jan. 3, 2013.

You are in removal proceedings that have not been administratively closed.

At the time of filing, you are in removal proceedings that have been administratively closed but have been placed back on the EOIR calendar to continue your removal proceedings.

You have a pending Form I-485 Application to Register Permanent Residence or Adjust Status in the United States.

You have a final order of removal, deportation, exclusion from the United States

You are subject to reinstatement of a prior order of removal, deportation or exclusion from the United States.

Extreme Hardship

You must show that your U.S. Citizen spouse or parent would suffer extreme hardship if he or she stayed in the United States and was separated from you for some length of time, or that your spouse or parent would suffer extreme hardship if they came with you to your country of nationality while waiting for months for adjudication of a waiver application.

The following general factors are considered:

Health – Whether you have a USC spouse or parent who suffers from a medical or mental health condition that requires ongoing care and specialized treatment, and that such treatment is not as available and practicable overseas.

Financial – Whether your USC spouse or parent will suffer financial hardship amounting to loss of home or business, loss of current/future employment, a substantial decline in the standard of living, or the costs associated with caring for family including education of your children and caretaking of your elderly USC parent.

Education
– Whether your USC spouse will lose the opportunity pursue higher education, complete training necessary for specific employment, or be educated in his or her language and culture.

Special Considerations
– Whether your USC spouse would be subjected to social stigmatism, religious or language difficulties, or less opportunities because of gender. Also, whether your USC spouse would be persecuted while overseas.
Finally, any other special or extraordinary factors causing extreme hardship are considered.

Conclusion

If you are inadmissible as a result of “unlawful presence” and you meet the above eligibility requirements and can demonstrate extreme hardship to your USC spouse, you will be granted a provisional waiver. So long as the other requirements mentioned above can be met, then your USC spouse or parent can become a Lawful Permanent Resident.

Call our office to begin the process to obtain legal status.

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Jeff Goldman, Seattle Immigration Attorney

Call Jeff Goldman Today 206-488-9030

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