Provisional Unlawful Presence Waiver I-601A

by keith on August 2, 2013

New Provisional Unlawful Presence Waiver I-601A

Starting on March of 2013, USCIS implemented its new Provisional Unlawful Presence Waiver (I-601A) program to help visa applicants whose only issue of inadmissibility is their unlawful presence. To be eligible for this waiver you must be the beneficiary of an approved immigrant visa petition classifying you as an immediate relative of a U.S. citizen and you must have already paid the Department of State immigrant visa processing fee for the case associated with the approved immigrant visa petition.

Shortens the period of time U.S. citizens are separated from their immediate relatives.

The purpose of this provisional waiver is to shorten the period of time U.S. citizens are separated from their immediate relatives while those relatives are overseas obtaining their immigrant visas. Prior to this waiver being available, immediate relatives who had to travel overseas for consular processing to obtain their immigrant visa had to wait until after their immigrant visa interview abroad to file for a waiver of any issue of inadmissibility that the Department of State (DOS) consular officer determined they had. Now, for those whose only issue of inadmissibility is the accrual of more than 180 days of unlawful presence in the U.S., they can obtain a waiver prior to leaving the U.S. for their immigrant visa interview. Thus, if the DOS consular officer determines there are no other issues of inadmissibility, and approves their visa, they have already obtained the necessary waiver they need to be admitted back into the U.S. as a lawful permanent resident.

The risks with this new waiver is inadmissibility

The risks with this new waiver remain the same as any other waiver of inadmissibility. This new waiver does not change the immigrant visa process, nor does it guarantee that the immigrant will be granted a visa or admitted into the U.S. The benefits of this new provisional waiver are limited to merely shortening the possible time an immigrant expects to be outside of the U.S. for the visa process by allowing them to obtain the waiver prior to departing the U.S. as opposed to after their interview with the consular officer.

Provisional I-601A Waiver

The provisional I-601A waiver itself is very similar to the I-601 waiver. It still requires that you show extreme hardship to a qualifying relative if you are refused admission to the U.S. However, unlike the I-601 waiver, the qualifying relative must be a U.S. citizen and can only be either a spouse or parent. And you cannot be subject to any other grounds of inadmissibility other than unlawful presence. Moreover, you must show that you have already paid your immigrant visa processing fee and provide proof of payment with your application.

Other Drawbacks

Additional drawbacks appear to be that USCIS is only approving cases where there is no question at all that you would be subject to any other grounds of inadmissibility. Even if a particular violation would not normally subject you to inadmissibility, USCIS has been denying these waivers anyways. It appears that USCIS is only approving those waivers which are very clean and show extreme hardship.

If You are Denied – you will not be harmed…

However, a denial of the I-601A waiver does not mean that the officer will find that you are inadmissible. It also doesn’t mean that you won’t be able to obtain a waiver after your immigrant visa interview with the consular officer. It simply means that you will most likely need to take further steps after leaving for your interview.
Once your I-601A waiver has been approved, it will only take effect after you depart the U.S. and appear for your interview and a DOS consular officer determines that you are otherwise admissible to the U.S. and eligible to receive an immigrant visa. If you fail to appear at your immigrant visa interview, DOS may terminate your application which will revoke your waiver. Your waiver may also be revoked if USCIS revokes your underlying petition, the consular officer determines you have other grounds of inadmissibility or if you attempt to enter or re-enter the U.S. without inspection and admission during the application process or before your visa is issued.
While paying the $670 fee seems like a lot to pay for such a small benefit, you don’t want to get to your interview only to realize that had you obtained this waiver beforehand you could be on your way back to the U.S. as a lawful permanent resident instead of needing to file another application and wait.

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