Waivers and Provisional Waivers

I-601 Waiver

Waivers and Provisional Waivers

Since March 4, 2013, a waiver has been available for inadmissible immigrants in the United States. The I-601 Waiver, also known as the Provisional Waiver or the Provisional Unlawful Presence Waiver allows foreigners who are relatives of legal US citizens or legal permanent residents of the United States to apply for a waiver prior to leaving the country for a consular interview. This waiver also applies to lottery winners, as well as immigrant visa applicants that fall into other categories.

The US Citizenship and Immigration Services (USCIS) created this Provisional Waiver as a way to minimize the uncertainty and worry that came along with the previous waiver method and to encourage unity amongst families. Previously, relatives of US citizens and permanent legal US residents and lottery winners had to apply for a waiver after they left the country to attend a consular interview. The Provisional Waiver prevents the risk of foreigners getting stuck out of the country in the event that their waiver application is denied.

What the Provisional Unlawful Presence Waiver Addresses

Generally, in order for foreigners to apply for a green card and adjust their status to immigrant or permanent resident while they are in the United States, they must have entered the country legally (they must have undergone an inspection by a USCIS official); if so, they can adjust the status of their status and secure a green card without having to leave the country. However, foreigners who have entered the United States unlawfully must leave the US so that they can adjust their status and secure an immigrant visa. For individuals who have been in the US unlawfully for a period of 180 days or more, they would be barred from the country for a period of three years, while individuals who were in the US unlawfully for a period of 1 year or more would be barred from the country for a period of 10 years. As such, prior to the Provisional Waiver, individuals who were in the country illegally would be required to leave the country and would not have any way of knowing if they would be allowed to reenter.

As of January 2013, however, that changed. It was then that the USCIS introduced the I-601 Waiver, a provisional waiver that addresses the issue of immigrants needing to exit the country in order to complete their green card application. It makes it possible to apply for a waiver within the country prior to leaving; if approved, the provisional waiver will allow individuals to return to the United States after they have left for their consular interview. While the provisional waiver does make it possible to return to the US, it should be noted that it is only effective once the foreigner leaves the country and appears for a consular interview. A consular officer from the Department of State (DS) has to confirm whether or not the individual is admissible to the United States and if the immigrant qualifies for an immigrant visa.

It’s also important to note that this provisional waiver does not change the process of securing an immigrant visa. Once it is approved, foreigners must still leave the country and go to the US consulate or embassy of their home country in order to process an immigrant visa; but, the I-601 waiver does minimize the amount of time a foreigner will need to be outside of the country; it also assures that they will be able to regain entry into the United States.

Qualifications for the I-601 Provisional Waiver

To qualify for the provisional waiver, the following must be met:

  • The individual must be a minimum of 17 years old
  • The individual must be married to a legal US citizen or be the unmarried child who is under the age of 21 of a US citizen, or be a parent of a US citizen who is over the age of 21.
  • The individual must also show hardships exist for qualifying relatives if the individual’s admission to the United States is refused.

Additionally, the individual must have an approved I-130 or I-360 petition, which states that the foreigner is eligible for an immigrant visa and has a pending immigrant visa case with the State Department. Furthermore, the individual has to be physically present in the United States in order to file the provisional waiver application, and must be able to provide biometrics. Lastly, the individual must not have had an immigrant visa interview scheduled by the consulate prior to January 3, 2013.

Who Does Not Qualify for an I-160 Waiver

Individuals who have entered the United States unlawfully should not file an I-160 application until they consult with a lawyer, as they may be able to adjust the status without having to leave the country. Additionally, foreigners who have a criminal history or who have committed some act of fraud should not apply, as their visa will be considered inadmissible. Lastly, individuals who have a permanent bar will not be eligible for the I-160 waiver. Usually, a permanent bar occurs when a foreigner has been in the country unlawfully for a period of more than one year after 1996 and then attempted to enter the US a second time unlawfully.

Applying for a Provisional Waiver

To apply for the Provisional Waiver, you will need to fill out Form I-601A and file it with the USCIS. You will also need to pay a filing fee (the amount of which will vary). Should the waiver be approved, it does not mean that you will automatically qualify for an immigrant visa. Should the waiver be denied, you can file it a second time; filing again is strongly recommended for individuals who have experienced a marked change in their circumstances and whose relatives are now facing more severe hardships. If a waiver is denied, you can still leave the country and try to secure a visa at your home country’s US consulate or embassy.

The Provisional Unlawful Presence Waiver is valuable for foreigners who have entered the United States unlawfully but would like to become citizens.

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