The New I-601a Waiver

A new procedure is going to be established for persons who want to immigrate to the United States and need to file for a waiver due to the fact that they have been unlawfully present in the United States. This procedure will be available to immediate relatives beginning March 4, 2013.

• Why is this waiver needed?

A person who had overstayed their status or had been unlawfully present in the United States, upon leaving the United States, incur what is known as the “three-year/ten-year bar”. That is, if he/she had been unlawfully present for more than 180 days, they are not able to return to the United States for three years. If they had been unlawfully present for 365 days or more, they are barred from returning for ten years.

This bar attaches only when a person leaves the United States. Therefore, if a person is eligible to adjust his/her permanent residence in the United States, the bar never attaches. However, those who are unable to adjust in the United States (notably, those who have entered the United States without inspection) must leave the United States to attend an interview at an American embassy or consulate. When they leave the United States to attend this interview, the bar attaches. Once this happens, any such person cannot legally reenter the United States without obtaining a waiver.

• The waiver process previously

In the past, a waiver could not be applied for until the person has left the United States to attend the visa interview. Because the waiver is processed often to a number of months, this meant that the spouses will be separated from each other or from their children, or their parents. Because of the long delay, hardship would be cause on the applicant due to separation, employers not willing to wait, lack of salary, etc. The new provisional unlawful presence waiver will alleviate these concerns.

• Why is it called “provisional”?

The waiver is provisional since it only waives unlawful presence. It is not considered a full waiver, since there may be other grounds of inadmissibility. Sometimes, neither the foreign national nor the U.S. government is aware of these other grounds until the foreign national attends their interview.

• What are the benefits of the provisional waiver process?

Many of the benefits are obvious: families will be able to stay together, separation will be minimal, and income from employment will be able to be maintained. However, it should be noted the waiver process does not give an individual lawful status in the United States. Nor will it protect from removal, guarantee that the visa will be issued, or remove the requirement to depart the United States for an interview.

• Who is eligible for the provisional unlawful presence waiver?

Not everyone will be eligible to apply for under this process. The applicant must be in the United States and be the beneficiary of the approved immediate relative petition.

• Who are not eligible for the provisional unlawful presence waiver?

Persons who are in deportation proceedings, or if ordered deported, or persons who cannot prove extreme hardship to their U.S. citizen spouse or parent are not eligible for a provisional unlawful presence waiver.

• What happens if the provisional unlawful presence waiver is denied?

If the waiver application is denied, there is no appeal. Another request for waiver can be filed or the applicant can attend the interview and file a regular Form I-601 application. However, quite frankly, unless the applicant feels that he/she can overcome the ground for denial at the interview, much consideration will have to be given as to whether the applicant will, in fact, want to continue the process, thereby, leaving the United States and incurring the three-year/ten-year bar.

• Should a person normally be eligible for a provisional unlawful presence waiver consult with an attorney?

Absolutely! This waiver, as with all waivers, is extremely complicated. The decision is discretionary and the criteria are very complex.