Provisional Waivers

It seems like you can’t go more than a day or two without hearing some new battle about immigration reform, and what to do about people in the country without permission. For those who live this situation, however, the problem is much more personal and can be extremely frightening. What many may not realize, however, is that thanks to recent changes in the law there are more opportunities than ever for the spouses of US citizens to regularize their own status.

If you or a family member is in the US without authorization, it is possible to apply for a provisional unlawful presence waiver, which will allow you to know if your waiver will be granted before you leave the US to finish your process. By knowing if your request to waive your unlawful presence is granted before leaving the US, you’ll be able to complete your immigration process more confidently.

Who is Eligible?

In order to qualify, however, you must meet a series of important requirements. It is important to note that unlike many other processes, you must meet all of the following requirements, not just one of them:

  • You must be 17 years old or older
  • You must be an immediate relative of a US citizen (spouse, parent or unmarried child under age 21)
  • You must have an approved Form I-130 (Petition for Alien Relative) or a Form I-360 (Petition for Amerasian, Widow(er) or Special Immigrant)
  • You must have a pending immigrant visa case with the Department of State and paid the immigrant visa fee.
  • You must be able to show that a denial of your admission to the US will result in an extreme hardship to your US citizen spouse or parent. Demonstrating extreme hardship just to a child is not acceptable.
  • You must be physically present in the US in order to file your application for this type of provisional waiver.
  • You must not have been scheduled for an immigrant visa interview by the Department of State prior to January 3, 2013.

If you meet all of the above requirements, you can begin the process of getting this provisional waiver.

How to Apply

Once your initial I-130 or I-360 has been approved, you need to complete the Form I-601A completely. As part of this application you will need to submit the required fees, as well as complete the biometric services (have your picture taken, file your fingerprints, etc). Once you have completed submitting this form, it will be reviewed and accepted by the Department of State. While waiting, you should not leave the country.

The Key

As with most processes, the form itself is the easiest part and the same is true for the I-601A process. The key to this process is your ability to demonstrate with overwhelming evidence that a denial would cause extreme hardship to your spouse or parent. The difficulty is that no clear, succinct definition exists for “extreme hardship.” Licensed immigration attorneys often have the experience you need to help you put together the most convincing package of evidence. Unfortunately, there have been many instances of scam artists (such as notarios) claiming to offer immigrants assistance with filing for this type of waiver for a fee. Once they get your money, however, they often just leave their victims without any assistance at all.

The Final Steps

Once your application is approved, you will be given an appointment at a US embassy or consulate at your country of origin. It is absolutely essential that you attend this appointment, or any future applications for a provisional waiver may be denied. Yes, this means you will have to leave the US to complete your process. However, if you have an approved I-601A, you can leave with greater confidence that you’ll return to the US.

Your trip outside the US can be as short as three or four days but sometimes as long as two weeks. You’ll complete a medical exam and go to your consulate interview. The consulate officer must agree that your unlawful presence waiver should be approved. If so and you pass the rest of your interview, you will re-enter the US as a resident.

If you are thinking about applying for this type of waiver, it is important that you either deal directly with the Department of State yourself, or hire a licensed immigration attorney. Please contact us today if you’d like assistance in this area!

Swenson Law Office, PC

5161 E. Arapahoe Rd., Suite 120