On January 3, 2013, the Department of Homeland Security (DHS) published a regulation which will, as of March 4, 2013, allow people who entered the United States without inspection (EWI) or those who are otherwise ineligible to adjust their status in the United States, to file Form I-601A to request a provisional waiver to excuse their unlawful presence in the United States. Prior to this new regulation, individuals were required to file an I-601 unlawful presence waiver outside the United States not knowing if the waiver would be approved. Now, visa applicants can receive a decision on their waiver prior to departing the United States.
The aim of this new process is to avoid having family members file I-601 waivers abroad and be separated from their families for months or even many years while their waivers are pending.
This is an exciting new development that will open up the door for many visa applicants who did not want to risk departing the United States to attend an immigrant visa interview not knowing if they would be able to return to the United States.
The waiver applies only to inadmissibility based on “unlawful presence” in the United States. This waiver is for applicants who are subject to either the three year or ten year bar once they leave the United States. This does not apply to applicants who are subject to the “permanent bar”. Applicants who are inadmissible due to fraud, criminal convictions or other grounds are not eligible for this provisional waiver.
To qualify, an applicant must be at least 17 years old and be the beneficiary of an approved I-130 visa petition as an “immediate relative of a U.S. citizen”. Immediate relatives include spouses, parents and children of U.S. citizens. The law requires that in order to obtain this new provisional waiver, the applicant must demonstrate extreme hardship to a qualifying relative. Qualifying relatives for the new provisional I-601A waiver only include U.S. citizen spouses and/or parents.