Provisional Waivers for Unlawful Presence - April 2013

By Anne C. Lahren.

Prior to March 4, 2013, there was no relief from within the United States for a alien immediate relative (such as a spouse, parent, or minor child) of a U.S. citizen who had previously entered without inspection (EWI), regardless of the hardship that such alien’s departure from the U.S. might cause the U.S. citizen immediate relative and family. Aliens who are EWI are ineligible to adjust status and must depart the U.S. and apply for an immigrant visa with the Embassy or Consulate in their home country before returning to the U.S.

If the immediate relative had accumulated six months or more of unlawful presence in the United States, they would need to obtain a waiver of the three- or ten-year inadmissibility bar to re-entry triggered by their departure. This traditional waiver had to be filed directly with the U.S. Embassy in the alien’s home country after the alien had departed the United States. The alien waiver applicant faced the very real risk of being prohibited from re-entering the United States and rejoining his or her family for a period of 10 years if the waiver was ultimately denied. Additionally, the waiver process itself can be very long and drawn out, so even if the waiver was ultimately approved, the alien could be waiting outside the United States for years prior to approval. As a result, many EWI immediate relatives elected not to begin the process for obtaining lawful permanent residence and have remained in the U.S. undocumented in hopes of staying “under the radar”. Without legal status, the foreign relatives are unable to legally work to help support their families, often resulting in a lower standard of living for the family.

On March 4, 2013, United States Citizenship and Immigration Services (USCIS) instituted a major change in policy by allowing immediate relatives of U.S. citizens to apply for a provisional waiver of the unlawful presence grounds of inadmissibility while remaining in the United States. This provisional waiver promotes family unity by allowing the alien immediate relative to remain with his or her family while the waiver is processed.

In order to file the Form I-601A Application for Provisional Unlawful Presence Waiver, the foreign applicant must meet all of the following criteria:

1.     Must be physically present in the United States;

2.     Must be at least 17 years of age at the time of filing;

3.     Must be the beneficiary of an approved petition classifying him or her as the immediate relative of a U.S. citizen;

4.     Must have an immigrant visa case pending with the Department of State (DOS), which is related to the approved immediate relative visa petition classifying the foreign applicant          as an immediate relative (Form I-130 or I-360) and for which the DOS immigrant visa processing fee has already been paid; and

5.     Must be or believe to be only inadmissible for unlawful presence in the United States under INA section 212(a)(9)(B)(i)(I) or INA Section 212(a)(9)(B)(i)(II).

Note: Applicants for whom the Department of State initially acted before January 3, 2012 to schedule an immigrant visa interview are not eligible for filing the provisional waiver and must seek any necessary waivers through the traditional waiver process.