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Changes in Provisional Waiver Adjudication

The provisional unlawful presence waiver is available to the spouse, parents and children of U.S. citizens who are ineligible to adjust status in the U.S. These include individuals who entered the U.S. as crewman or without inspection, and those who entered the U.S. on a K-1 fiance(e) visa but did not marry the U.S. citizen who petitioned them. To be eligible, inadmissibility must be solely based on having accrued unlawful presence in the U.S.

Prior rules required the applicant to apply for an immigrant visa abroad and apply for a waiver after denial of the visa. Waiver adjudication is a long process that can take several months or even years. The provisional waiver process shortens the time U.S. citizens are separated from their families by allowing qualified individuals to apply for the waiver in the U.S. and have it adjudicated before they leave the country for their immigrant visa interview.

In order to qualify, the applicant must be physically present in the U.S. and must at least be 17 years of age at the time of filing. The applicant must also demonstrate that the qualifying U.S. citizen relative will experience “extreme hardship” if the waiver is denied.

Individuals with final orders of exclusion, deportation, or removal as well as those who are currently in removal proceedings that are not administratively closed at the time of filing are ineligible for a provisional unlawful presence waiver. Individuals who have pending application for permanent resident status with the USCIS are also not eligible to apply.

Also, where a USCIS officer finds that there is a reason to believe that the applicant is inadmissible based on grounds other than unlawful presence at the time of his or her immigrant visa interview, the request for provisional waiver will be denied.

For several months after the USCIS started accepting applications on March 4, 2013, there were many reports of provisional waiver application denials. USCIS officers adjudicating requests for I-601A waiver appeared to deny applications where there existed a reasonable suspicion that the applicant might be inadmissible based on other grounds other than unlawful presence.

Request for I-601A waiver of applicants who have prior encounters with the law, for instance, were denied by adjudication officers, regardless of the sentence imposed or whether the offense is a crime involving moral turpitude.

To address this, the USCIS issued a memorandum clarifying that if the applicant’s criminal offense falls within the “petty offense” or “youthful offense” exception under the Immigration and Nationality Act (INA) or is not a crime involving moral turpitude, then the adjudication officer should not find a reason to believe that the applicant is subject to a ground of inadmissibility other than unlawful presence.

In this instance, the USCIS officer should continue to review the applicant’s record to determine whether he meets all the other requirements for provisional waiver and merits the favorable exercise discretion.

The applicant cannot appeal a denial of the provisional waiver application nor can he file a motion to reopen or reconsider the denial. However, he may file a new I-601A waiver application. The filing fee including fee for biometrics is $670. The immigrant visa fee must have been paid prior to the filing of the I-601A waiver.

USCIS will notify the National Visa Center (NVC) when the request for I-601A waiver is filed. NVC will place the case on hold while the waiver application is pending.

When the application is approved, USCIS will inform NVC of the decision which will then schedule the applicant for an immigrant visa interview. The case will be forwarded to the consular post for processing.

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