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Provisional Unlawful Presence Waiver FAQ

The new I-601A provisional unlawful presence waiver comes as good news to immediate relatives of U.S. citizens who are required under the current rule to leave the United States before they can be issued their immigrant visas. They will no longer have to deal with the uncertainties of the existing rule and the hardship of being separated from their families for a long period of time. Here are some frequently asked questions regarding the new provisional waiver:

(1) What is the “I-601A provisional unlawful presence waiver”?

This will allow certain individuals who are unable to adjust status in the United States to apply for waiver of unlawful presence in the U.S. before leaving abroad to obtain their immigrant visa. Individuals who have overstayed their visas or who entered the United States as crewmen or without inspection are ineligible to adjust status in the U.S. These individuals must leave the U.S. and obtain their immigrant visas abroad.

(2) How does this rule differ from the existing regulation?

Under existing rules, qualified individuals must wait for the denial of their visa application abroad and apply for waiver of unlawful presence using form I-601. Adjudication of the waiver is a long process and may take several months or even years.

This new regulation, on the other hand, will allow qualified individuals to apply for the waiver while in the United States before leaving abroad for their immigrant visa interview. An approved waiver of unlawful presence, absent other grounds of inadmissibility, will allow the consular officer abroad to issue an immigrant visa right away. The new regulation will allow U.S. citizens to be reunited with their immediate relatives without having to wait for a long time.

(3) Who are eligible for the new provisional waiver?

Only immediate relatives, namely, the spouse, parents and children, of U.S. citizens who are physically present in the U.S. and are at least 17 years of age at the time of filing are eligible to apply under the new regulation.

The applicant must be a beneficiary of an approved I-130 immediate relative petition.

In order to qualify, the applicant’s inadmissibility must be based on having accrued unlawful presence. Also, the applicant must demonstrate that the qualifying U.S. citizen relative (spouse or parent) will suffer “extreme hardship” if the waiver is denied.

An alien in removal proceedings may still qualify if his proceedings have been administratively closed and have not been re-calendared as of the time of filing of the I-601A. Before the alien departs the U.S. for immigrant visa interview, his removal proceedings should be dismissed or terminated. Aliens ordered removed or deported from the U.S. are not eligible under this rule. They may apply for waiver under the existing procedures using form I-601.

(4) When will the new regulation take effect?

The new regulation on provisional waiver takes effect on March 4, 2013. Only then will the USCIS accept Provisional Unlawful Presence Waiver applications on Form I-601A.

(5) What will an approved provisional waiver of unlawful presence mean?

The approval of the provisional waiver of unlawful presence will not create a lawful status for the alien. It will not grant the alien any benefits such as employment authorization and will not guarantee issuance of an immigrant visa. Absent any other grounds for inadmissibility and subject to other visa requirements, the approved waiver will allow the consular officer abroad to issue the immigrant visa without delay.

(6) What are the available remedies in case of a denial?

If the application is denied, the applicant cannot file an appeal nor can he file a motion to reopen or reconsider the denial. The applicant may, however, file a new Form I-601A showing additional evidence of the applicant’s eligibility for the provisional waiver so long as his immigrant visa case is still pending with the Department of State.

(7) Will the applicant for provisional waiver be deported if the USCIS denies the waiver?

The USCIS has stated that it does not envision the initiation of removal proceedings if the waiver request is denied or withdrawn. Referral to the ICE will be done only if the individual has a criminal history or has committed fraud or is a threat to national security.

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