Can a Provisional Waiver help you keep your family together in the U.S.?
- what a Provisional Waiver is
- what it can be used for
- who is eligible
- what the process is to apply, and
- what the advantages are to using this type of waiver.
What is a Waiver? What is an I-601A Waiver?
There are certain actions or circumstances that can make you ineligible for your Green Card (“inadmissible”). Sometimes a waiver can help you overcome those problems. (For more information on what can make you inadmissible, check out our article here. For more on waivers in general, check out this article.)
In 2013, the Department of Homeland Security introduced a new I-601A “Provisional Unlawful Presence Waiver” that allowed individuals with a U.S. citizen spouse or parent to apply for the waiver inside the U.S. and wait here while the government made a decision. This waiver can only waive Unlawful Presence, and not any other grounds of inadmissibility. If the waiver was approved, the person would then travel to a U.S. Consulate abroad for an interview with the 3- or 10-year bar already waived for them. If it wasn’t approved, they could choose to continue to remain in the U.S. without permission in order to stay with their family. In 2016, the Department of Homeland Security announced that they would expand the reach of this waiver, allowing more people to apply. For more specifics on the recent changes, check out blog post about the 2016 expansion.
What Can It Be Used For?
An I-601A Waiver is similar to an I-601 Waiver, but more limited. While the I-601 waiver can cover many different grounds of inadmissibility, the I-601A waiver can cover only one: Unlawful Presence (INA 212(a)(9)(B)). If you are inadmissible for any other reason (for example fraud, deportation order, missing an immigration hearing, etc.), you are not eligible to apply for an I-601A waiver. You may still be eligible to apply for another type of waiver, though.
Who Is Eligible to Apply?
There is a limited group of people who are eligible to apply for this type of waiver. In order to qualify for this special waiver, the person who needs the waiver must have:
- A parent or spouse (not child) who is a US Citizen
- A parent or spouse (not child) who has a Green Card (is an LPR)
For someone who has entered without inspection, and stayed in the U.S. for more than six months a waiver generally is required. If you do not have any other grounds of inadmissibility, then this waiver might be an option for you.
It is important to understand that not everyone who has Unlawful Presence needs a waiver. For example, someone who entered on a tourist visa, remained beyond his six-month authorized stay and then marries a U.S. Citizen does not need a waiver for Unlawful Presence. If he is otherwise admissible, then he can apply for his Green Card in the U.S. without leaving the U.S. and triggering the Unlawful Presence bar. There are also other circumstances in which a waiver would not be needed, so it is important to consult with a qualified attorney before deciding to file a waiver.
What Is the Process to Apply?
- The first step in the process of applying for this type of waiver is to file an Immigrant Visa Petition (I-130, I-140 or I-360). You need to have your Immigrant Visa Petition approval notice before you can go on to the next step. (You can also apply for the Diversity Visa Program, but since that process is slightly different, we won’t go into it here)
- Once USCIS has approved Immigrant Visa Petition, they will send your case to the National Visa Center (if the forms were filled out properly in Step 1). It usually takes around a month for them to transfer your case, and then another 10 days for the NVC to enter your case into their system. Once they do this, they will send you a “fee bill,” a bill for the Immigrant Visa fee and fee for the Affidavit of Support. After you’ve paid the fees to the NVC, you will get a receipt. You’ll need this receipt to file your waiver.
- Hopefully by the time you’ve reached this step you have prepared all the forms and evidence needed to file your I-601A Waiver. (In our office, as soon as we finish filing your Immigrant Visa Petition we send you a checklist of the documents and information needed to start preparing your waiver, in order to minimize the amount of time your case will take.) You’ll send your forms, evidence and other required documents (including the Immigrant Visa Petition approval and fee bill) to the correct USCIS address. Within a few weeks you will receive a receipt notice confirming that they received your waiver, and then an appointment notice to have your “biometrics” (fingerprints and photo) taken.
- A number of months after you submitted your waiver (it varies from a few months to close to a year) you will either receive a Request for Evidence or a decision on your waiver. If you receive a Request for Evidence, you will have a limited amount of time (usually 30 days) to submit all evidence requested. If USCIS decides that you have sent in enough evidence to support your case, you will receive an approval notice in the mail.
- Once your case has been approved, you can continue to process your Immigrant Visa case at the National Visa Center. You’ll need to submit a lot of documents and wait for them to look them over (which can take a few months). Once the NVC decides your documentation is complete, they will put you in line for an interview at the U.S. Consulate abroad in your home country.
- Once you get your interview date, you’ll need to arrange to get a medical exam and maybe other documents in your home country. You will go to your interview as scheduled, leave your passport with them, and wait at home for them to send it to you. You’ll receive your passport back with your Immigrant Visa in it, as well as an envelope that should not be opened. There is another fee you’ll need to pay, preferably before you travel.
- You can then make travel arrangements to return to the United States. When you land at your first airport inside the United States, you will have to go through Immigration. You will give that special envelope to the Immigration official, and he will enter your data into their systems.
- If you have paid the last fee, you should receive your Green Card in the mail within a month or two, and can celebrate the beginning of a new life in the U.S.!
What Are the Advantages to this Waiver?
The I-601A Waiver has a number of advantages over other waivers. Instead of having to leave the U.S. before you apply, you can apply for the waiver while living in the U.S. That means more time with your family and less disruption to your life. It also means that if your waiver is denied, you won’t be stuck outside the United States, away from your family. For the majority of people who are eligible, an I-601A Waiver is a far better option than the traditional I-601 waiver.