UPDATE: Be sure to read how the 2014 Executive Action will impact the Provisional Waiver Program.

The wait for the release of the new I-601A Provisional Unlawful Presence Waiver Form is finally over!  As of March 4, 2013, you can now file Form I-601A with USCIS.

This new waiver allows foreign nationals to apply for a provisional unlawful presence waiver while they are still in the United States, and before they depart for their immigrant visa interview at a US Embassy or Consulate abroad.  Prior to this waiver, immediate relatives of U.S. citizens who were not eligible to adjust status in the United States had to travel abroad and be found inadmissible at their immigrant visa interview before they could apply for an inadmissibility waiver of their unlawful presence.  Under this old process, families were separated for years waiting for a waiver, now at least; families can remain together in the United States while they wait for approval of the waiver.  

A few reminders as you consider whether to apply for the new Provisional Waiver:

If you are already in removal proceedings, you can still file a Provisional Waiver once your proceedings have been administratively closed and as long as your case has not been placed back on the Immigration Court calendar.  While it may seem like a long shot to ask a judge to close your case, judges are more likely to administratively close your case if they know that you are eligible to file for a Provisional Waiver.

The filing or approval of an application for a provisional waiver DOES NOT give you any lawful status in the United States or protect you from being placed in removal proceedings.  

Also, the provisional waiver ONLY waives unlawful presence; it does not waive any other grounds of inadmissibility.  Therefore, do not apply for the provisional waiver if the government will find you inadmissible for other things, such as criminal convictions or prior immigration fraud.  USCIS will reject your provisional waiver application if they believe there are other grounds of inadmissibility besides just unlawful presence in your case.

We previously blogged about the provisional waiver when the Department of Homeland Security announced in January 2013 that they were approving the new waiver, and also back in April 2012 when DHS first published a draft form of the rule regulating the waiver, and back in January 2012 when it was first announced.  

Here’s a review of the Provisional Waiver application process from our January post:

Who Can Apply?

• You must be physically present in the United States
• You must be at least 17 years old
• You must have a spouse, child or parent who is a U.S. citizen
• You must already have an approved I-130 petition based on your being an immediate relative of a U.S. citizen or an approved I-360 Petition for Amerasian, Widow(er), or Special Immigrant.
• You can’t have any other problem with your immigration besides 1) entering the US illegally (EWI or “entry without inspection”) or 2) being out of status (or having no status) for more than 6 months. 
• You have to be able to show that if you don’t get a green card, it will be extremely difficult for your U.S. citizen spouse or parent to be separated from you.  (This is the “extreme hardship” standard – which is not the same as “exceptional and extremely unusual hardship” which is the standard for another type of case, but can be difficult to prove anyway)

What Is The Process?

• You have to already have an approved I-130 (petition for alien relative).  You CANNOT file your I-130 together with the I-601A provisional waiver.
• If you’re not in removal proceedings, the I-601A is filed with USCIS.  Do NOT file Form I-485 (adjustment of status): it will be denied and you’ll be out over $1000 in filing fees.
• You will have to collect a lot of evidence to prove your eligibility for the provisional waiver.  You should not attempt to file a provisional waiver case without the assistance of an experienced immigration lawyer.
• You also have to file your immigrant visa forms (DS-230 forms) with the National Visa Center (NVC) and notify them that you intend to apply for a provisional waiver on Form I-601A.
• If your provisional waiver is approved, you will have to leave the United States and go back to your home country with the approved waiver for your immigrant visa appointment.
• If all goes well at the interview, you will get your immigrant visa, re-enter the United States, and your green card will be mailed to you a few weeks later.
• If you are in removal proceedings, you have to get your proceedings administratively closed before filing the I-601A, and then get them terminated before you leave the United States for your visa interview at your home consulate.

As you can see, it can be complicated to decide whether you can or should apply for the new provisional waiver.  How to prove that you can qualify is also a complicated matter.   But if you need to know now whether you qualify –  fill out the form to the right and we will contact you within 1 business day with some advice.