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Expansion of Provisional Waiver – I-601A

I don't usually post about new regulations on this blog, but the recent expansion of the provisional waiver (I-601A) process is too important not to mention.  The process allows immigrants to get a decision on an application for a waiver of inadmissibility before they travel abroad to their immigrant visa interview.  This shortens the time they are separated from U.S. citizen and/or permanent resident family members and also provides assurance that they will be able to return to those family members. USCIS also eliminated the reason-to-believe basis for denial of a provisional waiver, which benefits some applicants while creating a trap for others.

Expansion of Immigrants Eligible for Provisional Waiver

The provisional waiver process previously was open only to persons immigrating as the spouse, child, or parent of a U.S. citizen.  Effective August 29, 2016, any immigrant visa applicant may apply who would need a waiver of inadmissibility  upon departure from the U.S. after unlawful presence of more than 180 days or unlawful presence of one year or more.  That includes all family-based applicants, employment-based applicants, and diversity visa applicants.

Although the process is open to all immigrant visa applicants, applicants still need a qualifying relative. To obtain an approved I-601A, the applicant must establish that requiring him or her to wait outside the U.S. for 3 or 10 years would cause extreme hardship to a U.S. citizen or permanent resident spouse or parent. (Hardship to children does not count, at least not directly.)  That means that an applicant for an employment-based immigrant visa must still have a citizen or resident spouse or parent to benefit from the process.  The same is true for persons immigrating through a citizen brother or sister or through the diversity visa lottery.

Further, applicants need to be aware that the provisional waiver forgives only departure after unlawful presence of more than 180 days (the 3 year bar) and unlawful presence of one year or more (the 10 year bar).  An I-601A does not forgive any other ground of inadmissibility.  For example, it does not forgive entry without admission after April 1, 1997, after a previous removal order or previous unlawful presence of more than one year.  It also does not forgive inadmissibility for a criminal conviction, misrepresentation to obtain an immigration benefit, or other misconduct.  The provisional waiver, even if approved, will be automatically revoked if the consular officer finds the applicant inadmissible on any other basis than departure after unlawful presence.

Elimination of Reason to Believe Basis for Denial

Previously, USCIS would deny I-601A provisional waiver applications where there was reason to believe that the applicant would be found inadmissible on any other basis.  With the new regulations, USCIS has ended that practice.  The change eliminates a source of frustration and confusion, since USCIS's application of the reason to believe standard has varied over the few years the process has been in effect.  In some cases, USCIS has denied otherwise admissible applicants and approved otherwise inadmissible applicants.

The elimination of the reason to believe basis for denial, however, also creates a dangerous pitfall for applicants who apply without the benefit of expert immigration advice.  Applicants who file their own application or who use the services of a notario or less-experienced attorney may obtain an approved I-601A and then depart for the visa interview only to find that they are inadmissible on a basis other than unlawful presence.  That would result in revocation of the approved I-601A.  At best, an immigrant in that situation then would be able to file an I-601 waiver application and wait several months outside the U.S. for a decision on it.  At worst, the applicant may be found inadmissible on a basis that does not permit a waiver and the applicant would then be stuck outside the U.S. with no legal means of immigrating.

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