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Provisional Waivers

In January of 2013, USCIS announced the I-601A Provisional Unlawful Presence Waiver, allowing the spouses and children of United States citizens to apply for the waiver within the United States. In 2016, USCIS expanded the provisional waiver program to include relatives of Lawful Permanent Residents.

Who is eligible to apply?

To apply for the I-601A waiver, you must:

  • Be physically present in the United States;
  • Have an approve I-130 Petition (by a relative), I-140 Petition (by an employer), or I-360 Petition (certain other special categories);
  • Be inadmissible to the United States because you have spend more than 180 days unlawfully present here after your 18th birthday;
  • Have a qualifying relative who would suffer extreme hardship if the waiver is not granted.
    • The qualifying relative must be a US citizen or Lawful Permanent resident;
    • The qualifying relative must be a spouse or parent (NOT your child, though hardship to a child can be part of the argument for hardship to the qualifying relative);
    • The qualifying relative does not need to be the person who filed the I-130 petition for you;
    • You can have more than one qualifying relative.

Who cannot or should not apply?

  • If you entered the United States on a visa and overstayed.
  • If you may be inadmissible for some other reason (criminal history, fraud, false claim to be a US citizen, or because you have health problems such as a history of alcoholism).
  • If you have ever been in removal proceedings, or if you have previously been ordered deported, you must have your removal proceedings reopened and terminated before applying for an I-601A waiver.
  • If you are subject to the “permanent bar,” you are not eligible. The permanent bar applies to people in two scenarios:
    • You have been unlawfully present in the United States for a total period of more than one year after 1996, and have then re-entered or attempted to re-enter the United States unlawfully.
    • You have been ordered removed from the United States, and then re-entered or attempted to re-enter the United States unlawfully.

What qualifies as extreme hardship?

In short, “extreme hardship” must be something beyond normal difficulties of family separation and relocation. Common scenarios where USCIS is likely to find “extreme hardship”:

  • The qualifying relative is an active member of the US armed forces;
  • The qualifying relative suffers from a serious illness, and treatment would not be available in the applicant’s country;
  • The qualifying relative has a serious disability that would make life difficult in the applicant’s country;
  • The qualifying relative would risk violence or persecution in the applicant’s country, for example, because the qualifying relative is a same-sex spouse and the applicant’s country has outlawed same-sex relationships.

If my provisional waiver is granted, do I still have to leave the United States in order to become a Lawful Permanent Resident?

Yes. A common misunderstanding is that the new waiver process eliminates the requirement to apply for a visa at the consulate abroad. The waiver can reduce the time period you have to spend abroad (from over a year, to just a few weeks or months). However, if you are not eligible to adjust status within the United States, you will still have to leave in order to obtain your immigrant visa from the consulate abroad.

If my provisional waiver application is denied, can I still apply for a hardship waiver at the consulate?

Yes, if your provisional waiver application is denied, you can still leave the United States and submit a regular I-601 waiver at the consulate.

What type of information should I gather for my application?

  • Your immigration history (how many times you have entered the United States, what applications have been filed for you in the past, whether you have ever been in immigration court proceedings).
  • Your criminal history (how many times you have been arrested and when, what you were charged with, what your sentence was).
  • Think about how your qualifying relative would suffer if s/he had to stay in the United States without you, or if s/he had to leave the United States to go back to your home country. Consider your relative’s financial situation, medical needs, any history of mental health challenges or emotional trauma, educational history, etc.