USCIS Announces Provisional Waiver for Green Card Applicants with Unlawful Presence

Categories: Immigration Lawyer Blog San Diego

Beginning March 4, 2013, certain family members of U.S. citizens who are in the country illegally and need an unlawful presence waiver will be able to apply for such a waiver from inside the United States through Form I-601A.  This changes the previous process in which a relative would have to apply for the waiver while outside of the U.S. and wait for an indeterminate amount of time while the waiver was pending.  The applicant leaving the United States could also potentially have activated a 3 or 10 year bar.  Before applying for the provisional waiver, potential applicants should contact the National Visa Center and inform the Center that the applicant will apply for the provisional waiver.  Applicants must still leave the U.S. to complete consular processing, but the new waiver procedure will allow immigrants with unlawful presence in the United States to know in advance of leaving the U.S. that their case will probably be approved.  The provisional waiver is meant to relieve the applicant’s family of undue stress during the applicant’s time outside of the United States while completing consular processing.  This waiver only applies to immigrants who are inadmissible because of unlawful presence in the United States; immigrants who are inadmissible on other grounds are not eligible to apply for the I-601A waiver.

It is important to keep in mind that this is a “provisional” waiver, meaning that the government has reviewed the waiver application and intends to approve it but an approval is not guaranteed.  It is possible that if new facts arise or more detail is added to the case the waiver will not be approved.  Also remember that a provisional waiver is not a legal status and does not provide the benefits of work authorization, a driver’s license, or a social security number.  It also does not allow an applicant to enter the United States without first getting a visa or other applicable entry document.  There is also no appeal process after the rejection of a provisional waiver; the only manner of getting an approval after a rejection of the provisional waiver is to re-file with a new filing fee.

Applicants must show that their U.S. citizen relatives will face “extreme hardship” if the I-601A Provisional Waiver is not granted.  This can be a difficult barrier to overcome and applicants should include emotional, financial, and/or medical factors that will affect the applicant’s U.S. citizen relatives to demonstrate to USCIS why the Provisional Waiver is necessary in the applicant’s case.  Because the Provisional Waiver I-601A is not accepting applicants until March 4, 2013, it is difficult to predict how this waiver will actually affect potential beneficiaries.  It’s intended effects are definitely a step forward for those Green Card applicants with unlawful presence and no other criminal history in the United States.