FAQ’s about the Provisional Waiver:

This version includes responses that include the final ruling by USCIS on the provisional waiver process for the 3 and 10 year bars that was enacted on March 4, 2013.

Note: All information in this document only applies for the following people:

-Immediate family members of U.S. citizens: Spouses, children under 21 years, and parents of U.S. citizen children older than 21 years of age.

-People that upon seeking their residency need to undergo a consular process because they didn’t enter the country with inspection nor are they protected under the section 245(i).

The terms explained:

USCIS = U.S. Citizenship and Immigration Services

I-601A = A new form that qualifying applicants will be able to file in the U.S. to obtain a provisional waiver for the 3 and 10 year bars.

245(i) = A section of the law that permits people the opportunity to receive their residency in the U.S. without obtaining a bar for unlawful presence if they have a family petition registered before April 30, 2001 and they have resided in the country since December 20, 2000.

DOS = Departamento of State

Entry with inspection = Having submitted a visa or permit issued by the U.S. embassy in your country of origin to an immigration officer at a port of entry.

Note:

– If you are protected under the 245(i) section you do not need a provisional waiver for the 3 or 10 year bar.

– If you entered the country with inspection or with a visa you do not need a provisional waiver (I-601A) for the 3 or 10 year bar.

 

What is the I-601A provisional waiver about? (clic)

On January 2, 2013 the secretary of the Department of Homeland Security, Janet Napolitano, offered more information regarding the change that would take place for the provisional waiver process for the 3 and 10 year bars.
The goal of the change was to reduce the amount of time that U.S. citizens spend separated from their family members who are undergoing a consular process to obtain their legal permanent residency.

Why is a provisional waiver needed for the 3 and 10 year bar? (clic)

People who want to obtain legal permanent residency who entered the country without inspection and don’t have the 245(i) protection are barred from the country for a period of 3 or 10 years when they leave the country to undergo a consular process.
People who have lived in the country over 180 days without an immigration status receive a 3 year bar and those who lived in the U.S. for over a year will receive a 10 year bar upon exiting the country.

Who qualifies? (clic)

  1. Spouses, single children under 21 years, and parents of U.S. citizen children under 21 years of age.
  2. NOTE: Parents need a family member that will help them qualify for the provisional waiver for the 3 and 10 year bar  
  3. Family members that help you qualify for the provisional waiver (I-601 and I-601A) for these bars are a parent or spouse that is a U.S. citizen. Applicants must be able to prove that their U.S. citizen parent or spouse would suffer extreme harship if their provisional waiver is denied.
  4. People 17 years or older
  5. People with an I-130 petition approved
  6. People who have a case pending with the Department of State who have paid all necessary application fees
  7. People who are inadmissible solely for unlawful presence in the U.S., in other words the only reason they need the provisional waiver is because they have a 3 or 10 year bar
  8. People who meet the necessary requirements published on form I-601A and the instructions for this form
  9. People actually present in the U.S. who can attend a biometrics appointment and are eligible to apply for the I-601A provisional waiver for unlawful presence
  10. People who don’t have an interview scheduled for an immigrant with the Department of State before January 3, 2013

Will I still have to leave the country?(clic)

Once an I-601A provisional waiver is approved you will have to return to your country of origin for a short amount of time to attend your consular interview and obtain your green card.

When can we start applying for the I-601A provisional waiver?(clic)

As of March 4, 2013 those who meet the requirements can apply for the I-601A provisinal waiver in the U.S.

What do I need to be able to register the I-601A provisional waiver in the U.S.?(clic)

  • You will need to obtain the I-601A provisional waiver form on www.uscis.gov
  • You will need to be able to prove that your U.S. citizen spouse or parent will suffer extreme hardship if you are denied the provisional waiver
  • You will need to be able to return to your home country to undergo a consular process upon having the I-601A provisional waiver approved
  • You will have to notify the National Visa Center from the Department of State that you will be applying for the I-601A provisional waiver in the U.S.

What happens if my I-601A provisional waiver is denied?(clic)

If your I-601A provisional waiver is denied you will not be able to appeal the decision or file a motion to reopen. For this reason it is important to organize all adecuate information from the beginning prior to filing form I-601A. You will however be able to file a new form I-601A if your provisional waiver is denied for insufficient evidence to prove extreme hardship.

Who is not eligible for the I-601A provisional waiver?(clic)

  • • People who have an I-485 form pending with USCIS
  • • People in removal proceedings that have not been administratively closed
  • • People who have been deported, removed or excluded from the U.S.
  • • People subjected to the reinstatement of a removal order
  • • People who have an interview scheduled by the Department of State before January 3, 2013
  • • People who can’t prove that the denial of a provisional waiver would result in the extreme hardship of a U.S. citizen parent or spouse
  • • People who are found inadmissible for other reasons other than unlawful presence in the U.S.

Will I be referred to ICE for deportation proceedings if the I-601A provisional waiver is denied?(clic)

The director of USCIS, Alejandro Mayorkas, explained that USCIS has no intention of referring I-601A applicants to ICE upon the approval, denial or withdrawl of an I-601A provisional waiver. Only people that have a criminal record who have committed fraud or are a threat to national and public security will be referred to ICE.

What happens if I am undergoing deportation proceedings?(clic)

Only certain people in deportation proceedings will be eligible to apply for the I-601A provisional waiver for the 3 and 10 year bars in the U.S. If a case was administratively closed and it has not been rescheduled after submitting the form I-601A they may be eligible for the I-601A provisional waiver.

For more information visit: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=bc41875decf56310VgnVCM100000082ca60aRCRD&vgnextchannel=bc41875decf56310VgnVCM100000082ca60aRCRD#If%20You%20Are%20in%20Removal%20Proceedings

You must notify an immigration judge and ICE as soon as possible if you have applied for the I-601A provisional waiver inside the U.S. so that they can cancel removal proceedings prior to exiting the U.S. for your consular interview.

Cases in a court of immigration must be resolved by a judge before an I-601A applicant leaves the U.S.

How long does USCIS take to process the I-601A provisional waivers? (clic)

The director of USCIS, Alejandro Mayorkas stated that they don’t know how long this process will take. He explained that there is not a determined amount of time for this process. He did note however that the waiting period that families spend apart while a provisional waiver is processing will be shorter.

How much time will I have to spend outside of the U.S. after my I-601A provisional waiver is approved?(clic)

Applicants will have to return to their home country for a short amount of time after the I-601A provisional waiver is approved. The director of USCIS, Alejandro Mayorkas has stated that it is not yet known how much time will be spent outside of the country after an I-601A provisional waiver is approved. He explained that the process will be cut shorter than the amount of time that it takes for the I-601 provisional waiver process.

Is it possible to qualify for a work permit while my I-601A application is pending?(clic)

The sole purpose of having an I-601A application pending does not qualify an applicant for a work permit.

My spouse already left the country. Can they still qualify for an I-601A provisional waiver?(clic)

No. One of the requirements for the I-601A provisional waiver is that the applicant be present in the U.S.

They told my spouse that he must wait 10 years before being eligible for a provisional waiver. Can they apply for the I-601A? (clic)

No. Individuals who have attended their consular interview and received a letter stating that they don’t qualify for a provisional waiver until they reside outside of the U.S. for 10 years have been deemed ineligible because the consular officer reviewing their case discovered evidence that the applicant doesn’t only need a provisional waiver for the 3 and 10 year bars.

For example if a person lived in the U.S. for over a year without an immigration status and they left the country and returned at a later time they receive yet another bar and for this reason they must wait outside of the U.S. for at least 10 years before being eligible to apply for a provisional waiver.

 

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