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Provisional Waiver (I-601A) Process Expanded to All Immigrants Eligible for an Unlawful Presence Waiver

U.S. Citizenship and Immigration Services (USCIS) recently announced the expansion of the existing provisional waiver process to all immigrants who are eligible for an immigrant visa and a waiver of unlawful presence through U.S. citizen or permanent resident family members. This rule builds on a the provisional waiver process established in 2013 to support family unity. Under that process, immigrants can apply for provisional waivers of unlawful presence in the U.S., based on the extreme hardship their U.S. citizen spouses or parents would suffer if the waiver were not granted. The expanded rule, which goes into effect on Aug. 29, 2016, expands eligibility for the provisional waiver process to all immigrants who are eligible for the waiver of the unlawful presence ground of inadmissibility.

This process allows eligible immigrants to request a waiver of their unlawful presence bar before they leave the U.S. to attend their consular immigrant visa interview. It removes much of the uncertainty in the process and reduces the amount of time the immigrant must be outside of the United States during the immigrant visa process. To qualify for a provisional waiver, immigrant applicants must establish that their qualifying U.S. citizen or lawful permanent relative would experience “extreme hardship” if the immigrant is not allowed to return to the United States.

Until now, only immediate relatives (spouses, parents and children) of U.S. citizens were eligible to seek such provisional waivers before departing the United States for the processing of their immigrant visas. Those eligible for the provisional waiver process under the 2013 rule are only a subset of those eligible for the waiver under the statute. This regulation expands eligibility for the process to all individuals who are statutorily eligible for the waiver.

Applicants should not submit a request for a provisional waiver under the expanded guidelines until the final rule takes effect on Aug. 29, 2016. The immigrant visa and waiver processes are complicated. Immigrants should discuss their options with a qualified immigration attorney before beginning these processes. Attorney Amanda J. Bahena is an experienced immigration attorney and is available to discuss the waiver process, eligibility requirements, and other immigration concerns and questions.

Article submitted by Immigration Attorney Amanda J. Bahena

August 11, 2016