7,000 Provisional Waiver Applications Received During the First Four Months of the Program

by Buchanan Ingersoll & Rooney PC
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Since March 2013, certain immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) have been able to apply for provisional unlawful presence waivers (I-601A form) before they leave the United States. This process allows individuals, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver in the United States and before they depart for their immigrant visa interviews at a U.S. embassy or consulate abroad.  The USCIS National Benefits Center (NBC) has reported receiving approximately 7,000 I-601A waiver applications during the first four months of the program.  The NBC is indicating that their goal is to adjudicate I-601A applications within six months of submission.

To be eligible for a provisional unlawful presence waiver an applicant must fulfill all of the following conditions:

  • Be 17 years of age or older;
  • Be an immediate relative of a U.S. citizen (spouse, child or parent of a U.S. citizen);
  • Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant;
  • Have a pending immigrant visa case with the Department of State (DOS) for the approved immediate relative petition and have paid the DOS immigrant visa processing fee;
  • Be able to demonstrate that refusal of his/her admission to the United States will cause extreme hardship to a U.S. citizen spouse or parent;
  • Be physically present in the United States to file the application and provide biometrics;
  • Not have been scheduled for an immigrant visa interview by DOS before January 3, 2013; and,
  • Meet all other requirements for the provisional unlawful presence waiver

An applicant may not be eligible for a provisional unlawful presence waiver if any of the following conditions apply:

  • He/she is subject to one or more grounds of inadmissibility other than unlawful presence;
  • DOS initially acted before January 3, 2013 to schedule his/her Immigrant Visa interview for the approved petition upon which his/her provisional unlawful presence waiver application is based;
  • He/she is in removal proceedings that have not been administratively closed;
  • At the time of filing, he/she is in removal proceedings that have been administratively closed but have been placed back on the EOIR calendar to continue the removal proceedings; and/or,
  • He/she does not meet one or more of the requirements.

The USCIS National Benefit center has been scrutinizing these provisional waiver applications and has been issuing numerous requests for evidence.  It is of the utmost importance that provisional waiver applications be prepared cautiously with a thorough legal analysis of the applicant’s situation to avoid jeopardizing immigration benefits, present or future.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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