Provisional Waivers of Unlawful Presence

The provisional waiver program allows an applicant to stay in the U.S. while USCIS adjudicates the waiver application. If the provisional waiver is approved, the foreign-national can then return to his or her home country before the visa interview, and if a visa is granted, there will be no need to wait additional months for a separate waiver interview. Because of the provisional waivers, affected families are separated for a much shorter period of time. Additionally, foreign-nationals will be able to leave the country with a better degree of certainty as to whether or not they will receive a visa.

The provisional waiver application requires filing a form created for the process, the I-601A. The filing fee is $585, with an additional $85 biometrics fee required for most applicants. The following are the conditions for provisional unlawful presence waiver eligibility:

  • The applicant must be at least 17 years old;
  • The applicant must be an immediate relative of a US citizen. Immediate relatives include spouses, unmarried children under age 21, and parents.  Have an approved I-130, Petition for Alien Relative, or I-360, Petition for Amerasian, Widow(er), or Special Immigrant;
  • Have a pending immigration visa case with the Department of State, and payment of the Department of State immigrant visa processing fee;
  • A showing of extreme hardship to a US citizen spouse or parent should the applicant be refused;
  • Be physically present in the US when filing the provisional waiver and to appear for biometrics, i.e. fingerprinting;
  • Not have schedule and immigrant visa interview before January 3, 2013;
  • Meet all of the other requirements outlined in the Code of Federal Regulations and the Form I-601A instructions.

The legal standard for receiving a provisional waiver is the same as the standard for receiving a waiver of inadmissibility. An applicant will qualify if it can be shown that his or her U.S. citizen parent or spouse will suffer extreme hardship should the foreign-national not be allowed to return to the U.S. Typically, waiver applicants may also be approved by showing that a legal permanent resident parent or spouse will suffer extreme hardship. However, the provisional waiver program is only be available to applicants that can prove hardship to U.S. citizens, not legal permanent residents.

 

 

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