The Expanded I-601A Waiver
The provisional I-601A waiver which came into effect in 2013 allowed for certain applicants to file for the waiver while still in the United States. The provisional waiver only waives unlawful presence (time spent in the United States without permission) for those subject to the three-year and ten-year bar. The development in the I-601A waiver meant that applicants no longer had to spend months (or even years) in their home country while awaiting a decision on the waiver.
More information about the I-601A provisional waiver here.
What’s new ?
Starting August 29, 2016, the I-601A provisional waiver is expanding. It is a step in the right direction although it still leaves many would be applicants ineligible. There are two significant improvements:
- Anyone eligible for the waiver can file in the United States.
This change expands the ability to file the provisional waiver on Form I-601A to anyone who would be eligible for an unlawful presence waiver. Previously, it was only available to those who had an approved petition and a US Citizen spouse or parent. Now, those who have an approved petition and a lawful permanent resident spouse or parent may apply provisionally from the United States.
| Who was a qualifying relative before? | Who is a qualifying relative now? (8/29/2016) | |
| I601A Provisional Waiver (Submitted in the United States) | ·United States Citizen Spouse
·United States Citizen Parent |
·United States Citizen Spouse
·United States Citizen Parent ·Lawful Permanent Resident Spouse ·Lawful Permanent Parent |
- People with Final Orders of Removal will be eligible for the provisional waiver if they are first approved for advance permission to return on Form I-212.
Individuals subject to final orders of removal, deportation or exclusion will be able to apply for “advance permission” to return via an I-212 Application for Permission to Reapply for Admission into the United States here in the United States. Once approved, then they will be eligible to file for the I-601A provisional waiver. Previously, applicants with final orders had to return to their home country to apply for one waiver and then the other. The process could take years which meant an extended separation from family members while the applicant was outside of the United States. With the new rule, once the I-212 and I-601A are approved, the applicant will consular process which will reduce the time spent outside the United States to a couple of weeks.
Additional changes:
Another change is that the provisional waiver will be available now even if applicants were scheduled for a visa interview before January 3, 2013. This was a limitation of the original provisional waiver announced in 2013.
Additional considerations:
It is important to remember that the applicant still has to show “extreme hardship” to their family member to obtain approval. The applicant also must be physically present here in the United States.
Also, please keep in mind that the change means that more people are eligible for the provisional I-601A waiver however, applicants are still required to leave the country to attend an interview and finish consular processing in their home country. The big difference is that the time the applicant is outside the country will be minimal – a couple of weeks instead of a couple of months.
Conclusion:
The rules surrounding unlawful presence, the three-year bar, the ten-year bar, and the I-601A waivers are complex. If you have a lawful permanent resident or United States citizen spouse or parent, you may be eligible for the provisional I-601A waiver. If you have a removal order, you may still be eligible. Please make an appointment with Cristina M. Hughes to assess eligibility and to start your case today!
