On January 2, 2013, the Department of Homeland Security introduced the Provisional Unlawful Presence Waiver, which went into effect as of March 4, 2013. The purpose of the waiver was to keep families together and shorten the period of time that U.S. citizens are away from their loved ones. The waiver made it possible for those who entered the United States without any documents to stay in the country. The person must have an immediate relative who is a U.S. citizen and an approved immigrant petition to apply for an unlawful presence waiver. He or she must also remain in the U.S. while the waiver is in process. Once the waiver is approved, the alien is then required to travel to their home country to attend the visa interview.
The following is the full list of requirements for the I-601A provisional waiver:
1. Be at least seventeen (17) years old at the time of filling;
2. Be physically present in the U.S.;
3. Be the beneficiary of an approved immediate relative petition;
4. Have a pending immigrant visa case with the Department of State and fully paid all visa processing fees;
5. Be able to demonstrate that denial of admission into the U.S. will cause extreme hardship on the relative who is applying for you;
6. Be inadmissible into the U.S. for unlawful presence under INA 212(a)(9)(B)(i);
7. Meet the requirements for a waiver under INA 212(a)(9)(B)(v); and lastly
8. Leave the U.S. to obtain an immigrant visa abroad once the waiver is approved.
In many instances, USCIS will deny an I-601A waiver application if the alien is:
1. Currently in removal proceedings;
2. Has been ordered removed/deported from the U.S.;
3. Has previously been ordered removed
4. Has a pending adjustment of status case;
5. Was scheduled for an immigrant visa interview prior to January 3, 2013
6. Or, if the alien is inadmissible for reasons other than unlawful presence in the United States.
Since its inception in March 2013, USCIS has received an influx of I-601A applications, many of which are not approvable. USCIS has denied many applications simply because the applicant either failed to satisfy ALL of the eligibility requirements or the evidence submitted with the application was insufficient to prove that the U.S. citizen petitioner will be subject to extreme hardship if the alien is denied admission into the U.S.
Given the fact that there is no appeal or reconsideration process for a denied I-601A waiver, it is very important to submit a complete application and to thoroughly document the hardship your U.S. citizen relative would endure if your application is denied. A simple letter stating that you will face hardship is not enough. You must submit statements accompanied by evidence to demonstrate that your relative would be subject to extreme hardship. A hardship includes but is not limited to financial hardship, medical hardship or severe personal/emotional hardship if your application is not approved.
Although you cannot appeal a denied application, it is important to know that there are some options available to those whose provisional unlawful presence waiver have been denied. If the denial is based on an incomplete application or lack of evidence, the simple answer is to re-apply if you are able to gather additional information or documents to supplement your application. In the event that you are unable to obtain additional information or documents to re-apply, you can simply choose to abandon your case and seek other options. In many cases, denial of you provisional waiver application will not automatically lead to removal/deportation proceedings unless USCIS believe that you are a threat to public safety and national security or you have been convicted of a crime. You may choose to explore other reliefs for which you may be eligible.
Since March 2013, many people living in the U.S. without any status have applied for the I-601A waiver. Many applications have been approved, and many have been denied. The I-601A waiver is very high stakes in terms of time, cost, and consequences to your future in this country. You do not want to do this on your own or have a non-attorney do it for you. At Napier Law we have a successful track record with I-601A waiver. Let our experience work for you. If you believe you might benefit from this waiver, the first step is to contact our office at (617) 320-3711 for a free case evaluation. We will determine if you are eligible for the provisional unlawful presence waiver and whether it is the best relief available to you.