Effective on March 4, 2013, the I-601A Provisional Waiver allows families the opportunity to stay together while United States Citizenship & Immigration Services (“USCIS”) adjudicates the waiver. This is a major step forward in the effort to keep family members together. However, not everyone is eligible for the Provisional Waiver.
Am I eligible for the Provisional Waiver?
The following must be met in order to be eligible for the provisional waiver:
- The beneficiary must be at least 17 years old;
- The beneficiary must have an approved immediate relative petition (Form I-130);
- The beneficiary must be either a spouse, parent (sponsoring son/daughter must be at least 21 years old), or child (generally must be under 21 years old) of a U.S. citizen;
- The beneficiary’s ONLY ground of inadmissibility is “unlawful presence” which would trigger the 3- or 10-year bars if the beneficiary were to depart the United States;
- The beneficiary is already in the United States;
- The beneficiary is not in removal proceedings (or such removal proceedings have been administratively closed and have not been scheduled as of the time the waiver is submitted).
How likely is it that my waiver be granted?
The U.S. citizen applicant (also called the “anchor relative”) has to prove that s/he will suffer “extreme hardship” if the alien relative is forced to live outside the United States. A thoughtful and creative, well-documented waiver application has a much better chance of success than a bland, poorly documented one. Proving “extreme hardship” can involve situations surrounding medical dilemmas, financial despair, and emotional trauma. Waiver applications that combine all of these extreme hardship factors together are more likely to be successful than ones that incorporate only a single extreme hardship factor. Moreover, recently married couples and those without children are much less likely to be granted a waiver than those who have been married for many years and/or who have children and joint assets. The immigration lawyers at Genesis Law Firm will analyze the facts of your case to make an honest determination of the likelihood of success in submitting a waiver application.
If I submit a Provisional Waiver application will I be placed in removal proceedings?
USCIS has stated that it will likely NOT place I-601A applicants in removal proceedings, but it reserves the right to do so if the person is considered an “enforcement priority—that is, if the individual has a criminal history, has committed fraud, or otherwise poses a threat to national security or public safety.”
If my Provisional Waiver is denied can I appeal?
No appeals or Motions to Reopen or Reconsider are allowed. The only relief after a denial is to file another waiver, along with the filing fee.
How long does it take for USCIS to adjudicate Provisional Waivers?
It takes approximately 4-6 months for USCIS to adjudicate a waiver. Although Premium Processing is not available for waivers, applicants can request that USCIS expedite the adjudication process.
How can I find out if I am a good candidate to apply for a Provisional Waiver?
Talk to an immigration lawyer. Any good immigration lawyer who is comfortable with waivers will be able to ascertain whether you are a good candidate to apply for a waiver. It is really important that you find a lawyer that will be honest with you, even if it means telling you things you do not want to hear. Any lawyer who says, “Sure! I’ll take your case!” but doesn’t spend some time with you to determine if you are a good candidate, is not a good lawyer.