Overview of the Provisional Waiver
In January of 2013, the United States Citizenship and Immigration Services issued a new rule amending its policy to allow certain people to apply for a provisional waiver for unlawful presence before leaving the United States for their immigration visa interview in their home country. This new rule, also called the I-601A waiver, greatly reduced the amount of time a person would be separated from their family while obtaining a visa.
A person applying for a green card in the United States must have a lawful entry. Since many people living in the United States unlawfully entered the United States without permission, they must return to their home country and re-enter the US legally before being issued a green card. When someone lives in the United States unlawfully for several years and then exits the US, they trigger either a 3 or a 10 year bar in returning to the United States. Therefore, they must have this bar waived before they are allowed to re-enter the United States.
The I-601A waiver is a waiver given to undocumented immigrants who can demonstrate that their US citizen spouse or parent will suffer extreme hardship if their visa application is not granted. The I-601A waiver ONLY waives inadmissibility based on the 3 or 10 year bar, it DOES NOT waive any other inadmissibility grounds such as certain criminal offenses.
Prior to the I-601A waiver, applicants applying for a visa in the United States who did not have a lawful entry would be required to appear at their interview in their home country prior to filing the waiver application. After the interview, they would be told that they now must apply for a waiver of their grounds of inadmissibility. This would mean that the applicant would spend a significant amount time outside of the United States while they waited for USCIS to adjudicate their waiver application.
The I-601A waiver allows the applicant to remain in the US while the waiver application is pending. Upon approval, the applicant will still be required to return to their home country for their medical exam and interview. However, they will likely only be in their home country for a few weeks instead of several months.
Who is eligible?
The applicant applying for the waiver must have an approved I-130 petition, they must be physically present in the United States, not subject to any additional grounds of inadmissibility besides the 3 and 10 year bar, they must have paid their National Visa Center visa bills, and they must be able to show that the denial of their waiver would result in extreme hardship to his or her family members.
When the provisional waiver first became available, only applicants who were immediate relatives of US citizens were eligible to seek the provisional waiver before departing the US. Recently, USCIS announced an expansion of the provisional waiver rule, expanding eligibility to all individuals who are statutorily eligible. To qualify, applicants must show that their US citizen or lawful permanent resident spouse or parent would experience extreme hardship if the applicant is not granted the waiver. This expansion takes effect on August 29, 2016.
What are the risks?
As stated above, the provisional waiver only waives the 3 and 10 year bar – it does not waive any other inadmissibility grounds. When an applicant submits an application to USCIS, USCIS will determine if the person has a qualifying relative and if they meet the extreme hardship standard. However, they will not make a determination as to whether the applicant has any additional inadmissibility issues. Therefore, the applicant does face a risk that they will be found inadmissible for other grounds at the interview and the I-601A application will be void. The applicant would then be required to file an I-601 waiver of inadmissibility and would risk not be allowed reentry into the United States if the waiver were denied.