Provisional Waivers

When immigrants overstay their visas or enter the U.S. illegally, they accumulate unlawful presence days. The consequences of unlawful presence depend on the number of days accumulated.

If you have accumulated 180 days of unlawful presence, you may face a re-entry ban. Applying for a provisional unlawful presence waiver by filing Form I-601A can help you waive it.

A provisional unlawful presence waiver is a request to U.S.C.I.S. to temporarily ignore your unlawful presence by granting a provisional waiver. You can then adjust your immigration status to a lawful permanent resident based on family relations, employment, or a diversity visa.

The provisional unlawful presence waiver is just one of the many waivers of inadmissibility available. If you are facing deportation based on other grounds of inadmissibility, an attorney can advise you on which waiver to seek.

Contact Andrew T. Thomas, Attorneys at Law, if you need help with provisional waivers or have questions about U.S. immigration law.

What Exactly Is Unlawful Presence?

Unlawful presence is one of the grounds for inadmissibility under U.S. immigration law. Immigrants who entered the U.S. illegally and those who have stayed after their visa expiry date accrue unlawful presence days.

Typically, immigrants accumulate unlawful presence by:

Illegally crossing the U.S. border;
Overstaying the authorized visa period of stay; or
Entering the U.S. fraudulently (using a fake passport or visa, for example).

Immigrants who leave the United States after accruing unlawful presence will be barred from returning for several years. Depending on your accumulated unlawful presence, you can face a re-entry ban of up to ten years.

If you accumulate more than 180 days but less than a year, you can be deported and denied a future visa for three years.
If you have a year or more of accumulated unlawful presence days, the ban goes up from three to ten years.

Both bans can be overcome with a provisional unlawful presence waiver.

What Is I-601A Provisional Waiver?

Form I-601A is a request for a provisional waiver that immigrants in the United States can file to waive the bans on their admissibility into the U.S. Only bans that result from unlawful presence can be waived by the I-601A waiver. Applicants for the I-601A waiver must be physically present in the U.S.

Since August 29, 2016, all qualifying relatives of U.S. citizens and lawful permanent residents and those eligible for immigrant visas are eligible to apply for a provisional waiver via Form I-601A. The applicant has to prove that their departure and inadmissibility would cause extreme hardship to their citizen or permanent resident relative.

Eligibility to Apply for the Provisional Waiver

Historically, the I-601 waiver applicant had to be an immediate relative of a U.S. citizen (i.e., parent, child, or spouse) to be eligible. On August 29, 2016, the waiver was expanded to include all applicants who are qualifying relatives of lawful permanent residents and those eligible for an immigrant visa.

A qualifying relative is either a spouse or parent of a permanent resident.

Other eligibility requirements include the following:

Be at least 17 years old
Have an immigrant visa case pending
Have paid the immigrant visa processing fee
Be physically present in the U.S.

Why File an I-601A Provisional Waiver?

Eligible visa seekers and qualifying relatives of U.S. citizens and lawful permanent residents should apply for a 1-601A unlawful presence waiver if they have remained in the U.S. illegally for more than six months in one stay.

Let’s take a practical example:

You entered the U.S. illegally.
You married a U.S. citizen.
Your citizen spouse then files Form I-130, Petition for Alien Relative, on your behalf to obtain a green card.
You have accumulated 180 days of unlawful presence and are facing a re-entry ban for three years.

In this scenario, you must file Form I-601A to waive the three-year admissibility ban before any deportation proceedings against you are initiated. If deported, you can no longer request this waiver. Instead, you may request an inadmissibility waiver using Form I-601.

It’s important to note that you will still be required to leave the U.S. in order to go to attend your consular interview abroad.

If you remain in the U.S. after your waiver is approved, and you haven’t adjusted your status yet, you will still accrue unlawful presence and may still face deportation.

How to File Form I-601A Provisional Waiver Application?

Applying for an unlawful presence waiver is simple. You must:

Complete form I-601A.
Add the necessary supporting documents.
Pay the service and biometrics fee.
Mail your application to the U.S.C.I.S. Chicago Lockbox.

Depending on your situation, you may need to provide supporting documents that explain why the U.S.C.I.S. should grant your request. For example, you may argue that your citizen or permanent resident relative will suffer extreme hardship if you are not granted the I-601A waiver.

Extreme Hardship

If you are applying for the provisional waiver based on extreme hardship claims, it might be wise to learn what cases qualify.

The following cases may qualify as extreme hardship:

A qualifying relative is seriously ill, and you provide them with medical care.
The applicant is providing critical financial support to their citizen or lawful permanent resident spouse, parent, or child. Denying their waiver request will force the applicant to quit their job and stop providing the needed financial support.
The applicant’s native country is dangerous and poses a critical danger to the applicant and their relative if they relocate there.

There is no precise definition of “extreme hardship,” so every case is assessed on i

The Provisional Unlawful Presence Waiver Decision

Approval

Once the U.S.C.I.S. approves the provisional waiver request, it will send its decision to the National Visa Center (N.V.C.). The N.V.C. will provide the applicant with information on how to proceed.

Typically, the applicant must leave the U.S. to begin the immigrant visa process at the U.S. consulate or embassy in their home country.

Denial

If the U.S.C.I.S. denies your provisional waiver request, you can file a new Form I-601A and pay the required fee, provided that your visa case is still pending.

It is not possible to file an appeal or request reconsideration.

How Long Does a Provisional Waiver Process Take?

The processing time of the I-601A waiver application depends on the circumstances of each case but typically takes between nine and 12 months.

Andrew T. Thomas, Attorneys at Law Can Help

The requirements and laws governing immigration waivers are complex, and it can be challenging to prove extreme hardship.

Our attorneys at Andrew T. Thomas, Attorneys at Law are familiar with the nuances of inadmissibility waivers and how to choose, file, and prove them. We can help you obtain a waiver of unlawful presence and aid you in the following steps to adjust your status.

We provide a full range of citizenship and immigration services. Contact us today for a free consultation.