I-601A Unlawful Presence Provisional Waiver

On July 29, 2016, the USCIS announced a final rule expanding the scope of the I-601A provisional waiver. Generally speaking, a beneficiary of an immigrant petition must prove that they did not accrue more than 180 days of unlawful presence in the United States in order to qualify for an immigrant visa. If the beneficiary had accrued more than 180 days of unlawful presence, he or should would be banned from returning to the United States for 3 or 10 years.

Example 1: 21-year old Juan is a citizen of Mexico who came to the United States on a B-2 visitor visa in 2001. He remained in the United States and married an American citizen in Los Angeles in 2013. Since he has been unlawfully present for 13 years, he is unable to adjust his status. If he left the United States for his immigrant visa interview in Mexico, he would be banned from return to the United States for 10 years.

2013 Provisional Waiver Rule

In 2013, immediate relatives of U.S. citizens such as spouses, parents, or children under 21 who were unlawfully present, were able to apply for provisional waivers while in the United States if they could demonstrate extreme hardship to a U.S. citizen spouse or parent if the waiver was denied. If you were not an “immediate” relative, the provisional waiver was not available.

Example 1: Juan’s wife filed a Petition for Alien Relative which was approved. Since Juan is unlawfully present and cannot adjust his status, he files an I-601A provisional waiver with USCIS on the grounds that his U.S. citizen wife would suffer extreme hardship, which is approved. Juan can now travel to the U.S. consulate in Ciudad Juarez, Mexico for his interview. If his immigrant visa is approved, he is allowed to return to the United States with his approved provisional waiver – thus exempting him from the 10-year ban he would have otherwise faced.

Example 2: Juan never married but instead, his U.S. citizen mother filed a petition for him to get a green card. His mother’s petition was approved but he would not be able to apply for a provisional waiver because adult children of U.S. citizens are not categorized as “immediate relatives.” If Juan was under 21, he would be an immediate relative and could qualify for a provisional waiver.

2016 Provisional Waiver Rule

Effective August 29, 2016, the USCIS expanded the 2013 provisional waiver rule to allow any applicant who is statutorily eligible for the waiver of the unlawful presence ground of inadmissibility. This means that anybody who is otherwise inadmissible due to unlawful status can apply for a provisional waiver even if they were not sponsored by an immediate relatives. In other words, a beneficiary of an immigrant petition based on employment (EB-1, EB-2, EB-3), non-immediate relative (sibling, children over 21, spouses of permanent residents), and even diversity lottery applicants.

Like the 2013 rule, applicants must demonstrate that their U.S. citizen spouses or parents would suffer from “extreme hardship” if the applicants were barred from returning to the United States. However, the 2016 rule expanded the language to also allow for extreme hardship to a permanent resident spouse.

Example 1: Juan married a permanent resident (green card holder) on September 1, 2016 and his wife sponsors him for an immigrant petition which was approved. Juan applies for a provisional I-601A waiver on the grounds that his permanent resident spouse would suffer extreme hardship if he were prevented from returning to the U.S. Even though his wife is not a citizen, the waiver is approved under the new 2016 rule.

Example 2: After entering the United States in 2001, Juan found a job as an account manager. His employer filed a Petition for Alien Worker under the EB-3 category which was approved. His priority date became current on September 1, 2016 and he wants to apply for his immigrant visa. Since he is unmarried, he has been living with his elderly U.S. citizen mother who is on disability and social security. Juan files a provisional waiver on the grounds that his mother would suffer extreme hardship since his is the sole provider and care giver. Juan can now travel to the U.S. consulate in Ciudad Juarez, Mexico for his interview and return to the United States after his immigrant visa is approved.

What constitutes “Extreme Hardship”?

This is the million dollar question. What constitutes extreme hardship to qualify for a provisional waiver is discretionary and subjective. Generally, the applicant has the burden to prove this by a preponderance of the evidence. It must exceed something that is considered usual or expected. So a waiver application based on the fact that a U.S. citizen spouse would suffer emotional hardship is not likely going to qualify. Behind every application is a unique story – with unique circumstances and individuals. An experienced immigration lawyer can provide you with the professional guidance to determine whether an application for a provisional waiver has merit.

If you are the beneficiary of an approved immigrant petition, call Maximilian Law Inc. to discuss whether you may qualify for a provisional waiver.