USA Bars & Waivers
“Nearly all Americans have ancestors who braved the oceans – liberty-loving risk takers in search of an ideal – the largest voluntary migrations in recorded history… Immigration is not just a link to America’s past; it’s also a bridge to America’s future.”
George W. Bush
Regilucia Costa Smith, PLLC.
Immigration & Nationality Law
In 1996, Congress passed a law that bars certain persons who have accumulated a certain period of “unlawful presence” in the US and then left the country from becoming US permanent residents for a period of time unless they first obtain a waiver.
Persons who have accumulated 180 days or more of unlawful presence after April 1, 1997, and have then left the country, cannot return to the US for 3 years. Persons who have accumulated one year or more of unlawful presence after April 1, 1997, and have then left the country, cannot return to the US for 10 years. Persons who illegally return to the US without seeking a waiver must wait outside the US for a period of 10 years before they can apply for a waiver. The same rule applies to persons who illegally reenter the US after being deported.
A person can accumulate unlawful presence by
Persons who commit fraud or a material misrepresentation are barred from the US for life unless they obtain a waiver.
A waiver may be obtained by submitting Form I-601 to the USCIS and demonstrating that the person’s US citizen or permanent resident spouse or parent(s) would suffer “extreme hardship” unless the person was granted a waiver.
In 2013, it became possible to obtain an I-601A provisional waiver within the US. A 2016 rule expanded the qualifying relatives needed in order to apply for a provisional waiver.
On January 3, 2013, the Department of Homeland Security published a regulation allowing immediate family members of U.S. citizens who entered the U.S. without inspection, or are otherwise ineligible to adjust their status in the U.S. due to unlawful presence, to apply for “form I-601A provisional waivers” in the United States. Once their waivers are approved by the USCIS, they will be eligible to attend their appointments for immigrant visas (green cards) in their countries of origin.
The aim of this new program, which became effective on March 4, 2013, is to avoid having spouses and sons and daughters of U.S. citizens be separated from their families for months or even years while their waivers are pending.
Now, these family members will obtain their waivers before departing the U.S., will be interviewed abroad, and will then return to their families in the U.S. within just a few days or weeks.
You may need an I-601 waiver to waive your unlawful presence if you are married to a US citizen or lawful permanent resident or your US citizen child who is over 21 wants to file for you and you have an unlawful presence. Unlawful presence starts from the time that you have overstayed your visa, or from when you entered the country by just crossing the border without a visa.
If you have an unlawful presence from overstaying a visa, but your spouse or child who is over 21 is applying for you--you may not need to file for an unlawful presence waivers. Immediate relatives of US Citizens include spouses and parents. Immediate relatives are able to adjust their status to become green card holders without having to leave the country and pick up their visas in their home country if they entered on a valid visa and have proof (copy of your I-94 or passport stamp, etc.). If you are confused about this or need further clarification, then you should contact an immigration lawyer. Note: there are some people who entered with a visa, but had lied on their initial visa application or had other issues with that application and will need to file for an I-601 based on extreme hardship even though they came on a visa.
If you entered by crossing the border then you will most likely need an unlawful presence waiver. This means you will need to file an I-601 Application for Waiver of Grounds in Inadmissibility form with evidence of hardship to your spouse if you are unable to return or remain in the US.
If you are inadmissible because of unlawful presence or lying on your initial visa application, you will need to file an I-601 based on extreme hardship to a citizen or lawful permanent resident spouse or parent (USC spouse or parent if filing an I-601A). If you have certain kinds of criminal history, you will need to file an I-601 based on extreme hardship to your citizen or lawful permanent resident spouse, parent or child. In some case, your US citizen fiance may be determined to be a qualifying relative for purposes of the waiver.
You might be wondering what kind of “extreme hardship” does your spouse or parent (and in some instances child or fiance) would need to show. “Extreme hardship” is more than just the typical heartache or hardships that couples go through when they are separated. Sometimes looking and several individual hardships together can rise to the level of “extreme hardship,” but here is a list of some of the factors that are considered:
CAUTION: Working with a lawyer can help you narrow the list of hardships down to your strongest arguments.
For some people the waiver may be their only option. If you are outside of the US and are facing a 3 or 10 year ban, then the only way to get past the ban is to file a waiver for your unlawful presence showing the “extreme hardship” your spouse (green card holder or US Citizen) would face. If you are in the US you may be unwilling to leave the country and face being unable to return.
The I-601A process was introduced to allow people to leave the US with their waiver pre-approved. The pre-approval does not guarantee admission back into the US, but it does make it much faster for the consulate to allow you back into the country and it makes it easier to leave knowing that it has already been decided and that you will have only a one to two week wait in your home country. This process is not recommended for those who have ever been arrested and may have criminal admissibility issues separate from their unlawful presence. If you would like to talk more about this process, please contact me.
Beginning August 29, 2016, more potential applicants will become eligible to file family unity provisional waivers (Form I-601A) for unlawful presence. It is important to note that provisional waivers are merely a procedural remedy as to time and place for filing the waiver application and is not a statutory change that only Congress can make. Updated forms and instructions will be available on or before August 29, 2016 on the USCIS website.
The waiver is required for people who entered the USA illegally, or who overstayed visas, and who are not eligible to file for adjustment of status (Form I-485) in the USA. Applicants file for immigrant visas at US consulates abroad, but the act of leaving the USA to go to the interview can trigger the 3- or 10-year bar to re-entry. Since 2013, USCIS has allowed certain immigrant visa applicants to file their waiver applications (Form I-601A) prior to going to their consular interviews. Before the “provisional I-601A waiver” program, applicants would file waiver applications (using Form I-601) after their consular interview, only to find themselves separated from family for 6-12 months waiting for decisions on their waiver applications. The I-601A process allows applicants to file their waivers after their visa petitions are approved and prior to getting their consular interviews, thereby keeping families together for as long as possible. Once the waiver is “provisionally” granted by USCIS, then the applicant attends the consular interview. In theory, applicants should only be abroad for a couple of weeks.
The provisional stateside I-601A waiver only waives the ground of inadmissibility for unlawful presence found at the Immigration and Nationality Act sections 212(a)(9)(B)(i)(I) or (II) (the 3- and 10-year bars). If the consular officer finds other waivable grounds of inadmissibility besides unlawful presence, then another application must be filed on Form I-601 while abroad after the consular interview. Until August 29, 2016, only “immediate relatives” (parents, spouses and unmarried children under 21 of US citizens) could file for provisional waivers if they also have “qualifying relatives” who were US citizen parents or spouses.
Who can file for provisional waivers after August 29, 2016?
Applicants for immigrant visas based on family, employment, investment or diversity visa petition approvals may file for provisional waivers after August 29, 2016, provided they also have “qualifying relatives.” This means both “immediate relatives” (parents, spouses and unmarried children under 21 of US citizens) AND family preference applicants (spouses and married or unmarried children over or under 21 of US citizens, permanent residents, and siblings of US citizens) may file for provisional waivers. Minors who are applicants for immigrant visas but are under 17 are not eligible for provisional waivers (and are usually not subject to the unlawful presence bar anyway).
Since USCIS has now made the provisional waiver available to anyone who qualifies by statute, beginning August 29, 2016 applicants may also include beneficiaries of employment-based petitions, self-petitioners, investors, special immigrant petitions (I-140, I-360, I-526), and diversity visa applicants who would otherwise be ineligible for adjustment of status due to unlawful status and presence, and who must consular process immigrant visa applications.
Who are qualifying relatives (QRs)?
In addition to being an immigrant visa applicant, by statute to get a waiver of the unlawful presence bar, the applicant must also have one or more “qualifying relatives” (QR). QRs include US citizen and permanent resident spouses and parents of the applicant, NOT the children of the immigrant visa applicant. Prior to August 29, 2016, immediate relatives could file for provisional waivers only if they had US citizen QRs, not permanent resident QRs. Only Congress can change the definition of QR. Therefore, the provisional waiver regulations have not changed the meaning of QR, but for procedural purposes will now include both US citizen AND permanent resident QRs. Essentially, as of August 29, 2016, anyone who by statute is eligible for an unlawful presence waiver can file for a provisional waiver.
What is the waiver requirement?
By statute, the waiver/immigrant visa applicant must show it will be an “extreme hardship” to the qualifying relative if the waiver is not granted. The applicant’s own hardship or children’s hardships are not part of the waiver requirement, although their situations can be discussed as it relates to the QR’s hardships. The applicant should show the qualifying relative’s hardships from two perspectives: the hardships faced by the QR if he/she stays in the US and the applicant is forced to live abroad (“separation”), and the hardships faced by the QR if he/she joins the applicant living abroad (“together”). Only Congress can change the extreme hardship requirement. Therefore, the regulations haven’t changed anything here. USCIS is working on a separate guidance memo that would more carefully define “extreme hardship,” but that has not been issued yet. In general, extreme hardship is a look at all the hardships the QR will face: family, social, economic, medical, psychological, cultural and country conditions hardships. In addition to meeting the extreme hardship standard, the waiver application will be reviewed in the “exercise of discretion”, meaning it will only be approved if the good facts outweigh the bad facts.
What about people in removal proceedings or with final orders of removal?
Prior to the August 29, 2016 rule going into effect, individuals in removal proceedings or with final orders of removal, exclusion or deportation, or orders in absentia, or other similar orders were not eligible for provisional I-601A waivers.
Beginning August 29, 2016, some individuals in removal proceedings may also pursue provisional waivers. The waiver application is filed with USCIS, not with the court. However, applicants will need to have their removal proceedings terminated or administratively closed (and not re-calendared) prior to filing the waiver application.
Individuals who already have removal, exclusion or deportation orders will need to first file and have a conditionally approved (Form I-212) Application For Permission to Reapply for Admission to the United States After Deportation BEFORE leaving the USA and before they can file a I-601A family unity provisional waiver ,assuming there are no other grounds of inadmissibility.
Individuals with orders of voluntary departure cannot file for provisional waivers because USCIS will not know at the time of filing or adjudication whether the immigrant left the USA on time or if the order turned into an order of deportation for failure to leave by the expiration of voluntary departure. As noted above, an order of deportation will require a conditionally approved Form I-212 first before filing for the I-601A stateside waiver. Of course, if the immigrant left the USA on time per the voluntary departure order, then the person is abroad and can no longer file a stateside I-601A but may need to file a Form I-601 waiver after the consular interview.
Prior to August 29, individuals “subject to” reinstatement of a prior order of removal could not file for provisional waivers. After August 29, individuals with prior orders of removal who have had their orders in fact reinstated by ICE or CBP will not be able to file for I-601A waivers. Even if a prior order has not yet been reinstated, the applicant will most likely have the I-601A denied in the exercise of discretion, or it can be automatically revoked if the consular officer finds another ground of inadmissibility such as under section 212(a)(9)(C), which is a permanent bar without any waiver for illegal reentry after deportation or illegal reentry after a prior period of unlawful presence.
Of course, anyone with a history of encounters with CBP, ICE or the Immigration Courts should seek advice from an immigration attorney because these cases can be very complex.
What about other potential grounds of inadmissibility?
Prior to August 29, 2016, USCIS would deny provisional waiver applications if the agency “had reason to believe” there may be other grounds of inadmissibility in addition to unlawful presence (e.g., for crimes, fraud/misrepresentation, etc.). The consular officer has the final authority to decide grounds of inadmissibility after interviewing the applicant about the immigrant visa application. If there are other grounds of inadmissibility, then a provisional waiver is revoked and the applicant will need to file for a I-601 waiver abroad and wait there until it is approved. The new rule effective August 29 does away with the “reason to believe” standard for denying provisional waivers because of past confusion about it, but applicants with known or potential other grounds of inadmissibility should be aware that they may need to file I-601s abroad instead of or in addition to provisional I-601A waivers. In other words, if there are known inadmissibilities in addition to unlawful presence, skip the I-601A process and proceed to interview and file the I-601 right after the interview. If applicants are not sure whether they have other inadmissibilities or know they only have unlawful presence inadmissibility, then file the I-601A, with the proviso that the I-601 could be required after interview.
What are the timing requirements?
The I-601A is filed after the approval of a visa petition (I-130, I-140, I-526, I-360, Diversity Selection), and after the immigrant visa fees are paid to the National Visa Center but before attending a consular interview date. There were some timing restrictions around interview scheduling in the prior rule, but as of August 29, those timing restrictions are eliminated. HOWEVER, it is imperative that applicants stay in touch with either NVC or the consulate within one year of first communication to make sure either is aware of the applicant’s intent to continue the process. The waiver applications can take at least six months for a decision. Any lack of communication of one year or more with the US State Department (NVC or consulate) can result in termination of the registration. If that happens, applicants may need to request reinstatement or re-file a new visa petition. These communication requirements are also important when the quota or waiver processing times are bogged down. Always stay in touch with NVC or the consulate about intent to proceed on the applications. If sending written correspondence by mail, send it by a method that assures delivery and keep a copy!
While the waiver application is pending, what benefits if any, does applicant have?
A pending or approved provisional unlawful presence waiver does not constitute a grant of a lawful immigration status or a period of stay. Applicants without valid immigration status are always subject to arrest by CBP or ICE and can be put into removal proceedings, although one may want to ask for “prosecutorial discretion.” A pending or an approved provisional unlawful presence waiver does not allow one to file for a work permit or travel document (advance parole). Do not submit these with the waiver application. In addition, adjustment of status applicants (I-485) may not file for I-601A provisional waivers, but they may be permitted or directed to file I-601 waiver applications.
What about applicants already living abroad?
Applicants for immigrant visas living abroad who are inadmissible for a prior unlawful presence must file form I-601 after their consular interviews. The I-601A is for applicants currently in the USA who are out of status and who have not gone abroad yet for their consular interviews abroad.
Can the provisional waiver be revoked?
Yes – for these reasons:
Can I-601A denials be appealed or reconsidered or reopened?
No. But a new I-601A can be filed or a I-601 can be filed after the consular interview. USCIS does not believe appeals and motions are required as they view the I-601A not to be a complete process since it is only provisional in nature.
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