Stateside Provisional Waiver for Unlawful Presence (I-601A)

The final stateside provisional waiver rule was published on January 3, 2013 and will go into effect on March 4, 2013. The USCIS is preparing field guidance and training manuals, and expects that adjudication standards will be close to those currently in place for I-601 waivers.

Purpose of Stateside Waiver

The main goal is to cut waiting time while the family will get to stay together. Under the current process, which is available to persons not able to take advantage of the new provisional waiver process, eligible applicants for immigrant visas who have accrued unlawful presence beyond 6 or 12 months have to apply for an I-601 waiver of inadmissibility in their home country. By act of departing the U.S., they will be inadmissible to enter the United States for 3 or 10 years, respectively. Applicants leave and are often separated from their loved one for extended periods of time up, sometimes more than a year. They will only be allowed to immigrate to the United States with an approved waiver of inadmissibility for unlawful presence.

While the proposed Provisional Waiver will allow the families be together during the adjudication of the waiver, the applicant will still have to demonstrate that (1) he or she warrants a favorable exercise of discretion, and (2) that the qualifying relative will suffer extreme hardship if the waiver is not approved.

Stateside Provisional Waiver Processing

Under the new stateside waiver process, immediate relatives of U.S. citizens (spouses, children under 21, and parents) who need a waiver of unlawful presence in order to obtain an immigrant visa may file Form I-601A, Application for Provisional Unlawful Presence Waiver, before leaving the U.S. to obtain an immigrant visa at a U.S. Embassy or Consulate abroad. All eligible individuals are still required to depart the U.S. and must meet all legal requirements for issuance of an immigrant visa and admission to the U.S.

An intending immigrant may seek a stateside provisional waiver if he or she:

  • Is physically present in the U.S.;
  • Is the beneficiary of an approved immigrant visa petition (I-130) as an immediate relative of a U.S. citizen;
  • Is pursuing the immigrant visa process including the immigrant visa processing fee;
  • Is not subject to any other grounds of inadmissibility other than unlawful presence; and
  • Can show that refusal of admission would result in extreme hardship to a U.S. citizen spouse or parent.

An intending immigrant is not eligible for the proposed process if:

  • Has an application already pending with USCIS for adjustment of status to lawful permanent resident;
  • Is subject to a final order of removal or reinstatement of a prior removal order;
  • Is found inadmissible at the time of the consular interview for reasons other than unlawful presence; or
  • Already been scheduled for an immigrant visa interview at a U.S. Embassy or Consulate abroad.

The U.S. immigration system consists of a framework of highly complex laws, regulations and policies that are constantly changing. It is difficult to navigate through the process without the guidance of an experienced immigration attorney. Qualified counsel will be able to assess your case and eligibility, identify the risks and explore other legal options for acquiring immigration status. If an applicant uses the services of an immigration consultant or "notario" then the government will not permit such consultants to represent the applicant should problems arise.