PROVISIONAL WAIVER SHORTENS VISA WAIT ABROAD

Individuals who are not eligible to adjust their status because they were unlawfully present in the U.S. have to depart to process their immigrant visa at a US embassy or consulate abroad. The problem is if they leave, they will be subject to a 3 year or 10-year bar from reentering the US because of their unlawful presence. The 3-year bar is imposed if they have overstayed for more than 6 months. The 10-year bar is imposed if they have overstayed for more than a year.

 

Examples of individuals who are not eligible for adjustment are crewmen, those who overstayed, those who entered without inspection, and those who entered as a fiancé(e) but did not marry their petitioner.

 

Fortunately, there is a process available to waive their unlawful presence. They may file for an I-601A provisional waiver.

 

The I-601A Application for Waiver of Grounds of Inadmissibility is a way for the undocumented immigrants to show that their qualifying US citizen or lawful permanent resident (LPR) relative/s would be under extreme hardship if they are not allowed to re-enter the US or remain in the US with them. There is no one definition of what constitutes extreme hardship but various cases of the Board of Immigration Appeals (BIA) have stated that there is a non-exclusive list of factors that will be considered to determine whether the undocumented immigrant can remain in the US or re-enter the US on the ground of extreme hardship to his/her qualifying relative.

 

These factors are: the presence of LPR or US citizen family ties in the US; qualifying relative’s family ties outside the US; conditions in the country or countries which the qualifying relative would relocate to and the extent of the qualifying relative’s ties to such countries; financial impact of departure from the US; significant conditions of health and the unavailability of adequate medical care in the country which the qualifying relative would have to relocate to if the immigrant’s waiver is denied; and any other factors peculiar and relevant to the case

 

A psychological evaluation should be included in the waiver application to establish the fear, depression, and emotional and psychological state of the US citizen/ LPR spouse or parent of the waiver applicant because of the possibility that the undocumented immigrant would be deported. All of these details should be clearly explained in order to convince the USCIS that they should remain in the US or be allowed to return to the US, as the case may be.

 

The provisional waiver applicant must be inadmissible solely because of unlawful presence and demonstrate that the denial of the waiver would result in extreme hardship to the U.S. citizen or lawful permanent resident spouse or parent whether their visa petition is family-based or employment-based.

 

Those who do not qualify for the provisional waiver, perhaps because the required showing of extreme hardship was not made or because they were inadmissible on other or additional grounds such as fraud or misrepresentation or prior removal, may still avail of the existing waiver process (I-601) which requires a departure from the U.S. and filing of the waiver application abroad.

 

This would require them to leave the U.S. to apply for an immigrant visa abroad, appear at the visa interview, wait for the denial of their visa application because of their inadmissibility due to unlawful presence – which was itself triggered by their very departure – and then file the unlawful presence waiver application from outside the U.S. and wait for its approval there.

This existing process could take many months especially because of the pandemic. Because of the risks, costs, and hardships involved, many individuals chose to remain undocumented in the U.S.

 

The new provisional waiver process was designed to alleviate the hardships caused by the lengthy family separation

 

The DHS has reiterated that the provisional waiver is discretionary and does not guarantee admission into the U.S. and that it does not grant any lawful immigration status, create a period of authorized stay or authorize any interim benefits like employment authorization or advance parole.