You can be granted a waiver for your unlawful status
BEFORE you leave for the consular interview and return in about 3 weeks.
Our Office had over 200 cases approved during 2015!
What is this new waiver all about?
In the U.S. there are spouses and children of U.S. citizens (immediate relatives) who are in the United States are not eligible to apply for lawful permanent resident (LPR) status while in the United States due to their illegal entry. Under prior law, these immediate relatives must travel abroad to obtain an immigrant visa from the Department of State (DOS) to return to the United States to request admission as an LPR (Lawful Permanent Resident), and, must request from the Department of Homeland Security (DHS) a waiver of inadmissibility as a result of their unlawful presence in the United States.
Without such a waiver the applicant would not be able to return to the U.S. for a period of not less than 3 years. In other words, under the prior regulations, these immediate relatives cannot apply for the waiver in the United Sates and not until after their immigrant visa interviews abroad.As a result of their unlawful presence in the U.S., these relatives had to remain outside of the United States, separated from their U.S. citizen spouses, parents, or children, while USCIS adjudicates their waiver applications. In some cases, waiver application processing took well over one year, prolonging the separation of these immediate relatives from their U.S. citizen spouses, parents, and children.
The new provisional unlawful presence waiver(I-601A) process facilitates the issuance of immigrant visa for immediate relatives of U.S. citizens who are otherwise admissible to the United States except for the 3-year and 10-year unlawful presence bars, which are triggered upon departure from the United States.
The waiver process allows eligible immediate relatives to apply for a provisional unlawful presence waiver while they are still in the United States and before they leave to attend their immigrant visa interview abroad.
Who is eligible for the Provisional Waiver?
Currently, the provisional unlawful presence waiver process is available only to individuals who are residing in the U.S., are immediate relatives of U.S. citizens (i.e., spouses, children, and parents (if the U.S. citizen is at least 21 years of age)).
The focus of the provisional unlawful presence waiver process is to reduce the impact of the current waiver process on U.S. citizens by reducing the time U.S. citizens are separated from their immediate relatives.
Individuals who are already outside of the United States must pursue a waiver of inadmissibility through theprior Form I-601 process.
The provisional unlawful presence waiver process is available only to those individuals who are currently in the United States and will be departing for consular processing abroad.
What has to be established for the granting of the waiver?
Extreme Hardship to the United States citizen must be established in order for the waiver to be approved. This is the most difficult part in getting an I-601A waiver approved.
Extreme hardship is a statutory requirement that an applicant must meet to qualify for an unlawful presence waiver. The immigration las does not define the term, and federal courts have not specifically defined extreme hardship through case law. The BIA (Board of Immigraiton Appeals) has stated that extreme hardship is not a definable term of fixed and inflexible meaning, but that the elements to establish extreme hardship are dependent upon the facts and circumstances of each case.
Aliens in Temporary Protected Status
Any alien who meets the requirements of the provisional unlawful presence waiver process and who is consular processing abroad can obtain a provisional unlawful presence waiver regardless of the alien's current status in the United States. An alien currently registered for TPS under INA section 244, 8 U.S.C. 1254a, is considered to be maintaining lawful non-immigrant status for purposes of adjustment of status or change of status.
Is Concurrent filing of I-130 or I-360 and I-601A and I-212 (waiver for those people that have a deportation order) permissible?
No. DHS will not accept concurrently filed Forms I-130 and I-601A, or allow for the filing of the Form I-601A before approval of the immediate relative petition. DHS will not permit concurrent filing of Forms I-601A and I-212. (permission to reapply after prior removal (deportation)
DHS has adopted the current cost for adjudicating an Application for Waiver of Ground of Inadmissibility, Form I-601($585), as the initial filing fee that will be required for the Form I-601A.
Aliens in removal (deportation) proceedings
The Application for Provisional Unlawful Presence Waiver, Form I-601A, can be filed only with USCIS, even if an alien is in removal proceedings before the Court.
Aliens in removal proceedings are allowed to participate in this new provisional unlawful presence waiver process if their removal proceedings are administratively closed and have not been re-calendared at the time of filing the Form I-601A.
Aliens whose removal proceedings are terminated or dismissed are covered in the general population of aliens who are eligible to apply for a provisional unlawful presence waiver.
If the Form I-601A is approved for an alien whose proceedings have been administratively closed, the alien should seek termination or dismissal of the proceedings. The request for termination or dismissal should be granted before the alien departs for his or her immigrant visa interview abroad.
Applicants who leave the United States before their removal proceedings are terminated or dismissed may experience delays in their immigrant visa processing or risk becoming ineligible for the immigrant visa based on another ground of inadmissibility.
Aliens who have had their NTA's (Notice to Appear) canceled by ICE are also covered in the general population of aliens who are eligible to apply for a provisional unlawful presence waiver, since their removal proceedings were never initiated through filing of an NTA with EOIR.
DHS also notifis such applicants that, if granted the provisional unlawful presence waiver, applicants should seek termination or dismissal of their removal proceedings.
Work Permission & Travel
Pending or approved provisional unlawful presence waiver does not authorize any interim benefits such as employment authorization or advance parole
Other immigration applicants
DHS, in consultation with DOS and other affected agencies, will consider expanding the provisional unlawful presence waiver process to other categories, such a spouses of Lawful Residents. President Obama issued an order that would permit spouses and children of Lawful Permanent Resident to qualify. The governors of 23 states file an objection and the case is currently in the hands of the Supreme Court
How long will it take for an I-601A application to be decided?
From our experience it takes about six months to obtain an approval of the I-601A waiver and 3 more months to schedule the applicant for an immigrant visa interview.
What Can be Done if the Waiver is Denied?
If an individual's provisional unlawful presence waiver (i-601A) request is denied or withdrawn, the individual may file a new Form I-601A. Alternatively, an individual who withdraws his or her Form I-601A filing prior to final adjudication, or whose Form I-601A is denied, can apply for a traditional waiver by filing Form I-601, Application for Waiver of Grounds of Inadmissibility, with the USCIS Lockbox, after he or she attends the immigrant visa interview abroad.
Denial of an application for a provisional unlawful presence waiver is without prejudice to the alien filing another Form I-601A under paragraph (e) provided the alien meets all of the requirements. The alien's case must be pending with the Department of State, and the alien must notify the Department of State that he or she intends to file a new Form I-601A.
A provisional unlawful presence waiver is automatically revoked if the alien, at any time before or after the approval of the provisional unlawful presence waiver, or before the immigrant visa is issued, reenters or attempts to reenter the United States without being admitted or paroled.
If the Provisional Waiver is Denied will DHS begin Removal proceeding?
Consistent with its civil enforcement priorities, DHS does not envision initiating removal proceedings against aliens or referring aliens to ICE whose provisional unlawful presence waiver applications have been approved.
Similarly, consistent with its civil enforcement priorities, DHS also does not envision initiating removal proceedings against aliens whose Form I-601As are denied or withdrawn prior to final adjudication. An individual whose request for a provisional unlawful presence waiver is denied or who withdraws the Form I-601A prior to final adjudication will typically be referred to ICE only if he or she is considered a DHS enforcement priority—that is, if the individual has a criminal history, has committed fraud, or otherwise poses a threat to national security or public safety.
If USCIS denies an alien's Form I-601A, the alien has two alternate avenues for obtaining a waiver of inadmissibility: (1) Filing a new Form I-601A or (2) filing a Form I-601, Application for Waiver of Grounds of Inadmissibility with the USCIS Lockbox, after he or she attends the immigrant visa interview.
Does an Applicant for a Provisional Waiver receive any Benefits While in the U.S.?
No. The filing or approval of a provisional unlawful presence waiver application will not: (1) Confer any legal status; (2) protect against the accrual of additional unlawful presence; (3) authorize an alien to enter the United States without securing a visa or other appropriate entry document; (4) convey any interim benefits (e.g., employment authorization, advance parole, or eligibility to be paroled based solely on a pending or approved Form I-601A); or (5) protect an alien from being placed in removal proceedings or removed from the United States, in accordance with current DHS policies governing initiation of removal proceedings and use of prosecutorial discretion.
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