I-601AProvisional Unlawful Presence Waiver

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Outline

1. What is the Provisional Unlawful Presence Waiver?

2. Guidelines for Eligibility 3. Procedure for Filing4. Case Preparation

Today’s Dialogue Map…

What is the Provisional Waiver?

A new process for certain immediate relatives of US citizens who are present in the US, but do not meet the requirements to complete the green card process in the US. To complete the process, the foreign relative must return to his or her home country.

Here’s the catch: The moment the foreign relative departs the US, he or she triggers a 3 or 10 year bar to reentering the US. The bar is triggered due to prior unlawful presence in the US. The only way around the bar is to file an application for a “waiver of inadmissibility”.

What is the Provisional Waiver?

Regular Process for these Relatives to File an Application for a Waiver of Inadmissibility: Foreign relative stuck for months and months in home country, even if waiver successful. Risky process. If wavier denied, relative stuck until the bar has run.

New Provisional Waiver Process: Foreign relative files application and obtains provisional approval prior to leaving the US. If no other problems with the case, provisional approval should take the risk out of the process. Also, should drastically shorten time spent in home country.

What does it waive?

The Provisional Wavier only waives 1 ground of inadmissibility– inadmissibility based on unlawful presence in the US.

It does not waive inadmissibility due to fraud or criminal convictions.

Guidelines for Eligibility

* Foreign Relative must be the spouse, child, or parent of a US Citizen.

*US Citizen spouse, parent, or child must file and USCIS must approve an I-130 immediate relative petition for the foreign relative.

*USCIS must forward the case to the Dept. of State’s National Visa Center to establish an immigrant visa case. The immigrant visa fees must be paid.

*Foreign relative must be physically present in the US when waiver application filed and to give biometrics.

*Foreign relative must provide evidence to prove that his or her US Citizen spouse or parent will suffer extreme hardship if not admitted to the US.

Procedure

• File I-130 petition with USCIS.• Once I-130 is approved, USCIS will forward to National Visa Center.• National Visa Center will then send bill for visa fees. Pay fees.• File I-601A with filing fee, I-130 approval notice, Receipt for payment

of visa fees, and supporting documentation to prove extreme hardship to US Citizen Spouse or Parent.

• Upon approval, USCIS notifies National Visa Center• National Visa Center continues to process immigrant visa case,

eventually resulting in interview being scheduled at US Embassy in home country.

• Foreign relative returns to home country to have medical exam completed and attend interview. If all goes well, immigrant visa issued to foreign relative shortly after interview.

• Foreign relative becomes a Lawful Permanent Resident the day he or she returns to the US.

Waiver Case Preparation

1. Affidavit from US Citizen detailing the extreme hardship.

Grounds of Hardship•USC’s health –major illness, disability, advanced age, mental illness/emotional hardship•USC caring for family member—aging parents, children (with foreign relative v. children from prior relationship)•USC’s family ties to the US•Economic hardship•Spiritual•Country Conditions in Foreign National’s Home Country

2. Affidavit from Foreign Relative, if sympathetic circumstances.

.

Waiver Case Preparation

3.Evidence to support all grounds of hardship discussed--Letters/Affidavits from others

--Medical reports/evaluations

--Mortgage Statements, loan agreements, bills showing financial obligations

--Country Condition Reports/articles from reputable sources

--Family Photos

.

FAQ

•If my provisional waiver application is approved, does that mean that I will definitely get approved at my interview in my home country?

•What happens if my provisional wavier is denied?

Other Issues

•Cannot get provisional waiver if National Visa Center acted before Jan. 3, 2013 to schedule an immigrant visa interview (in most cases).

•If in removal proceedings or were in removal proceedings—must be taken care of before departing the US for interview.

Questions for us?

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