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SPOUSE OR PARENT OF PERMANENT RESIDENTS CAN APPLY FOR PROVISIONAL WAIVER USCIS TO ALLOW APPLICANTS WHO ARE THE SPOUSE OR PARENT OF LAWFUL PERMANENT RESIDENTS TO APPLY FOR THE...
USCIS TO ALLOW APPLICANTS WHO ARE THE SPOUSE OR PARENT OF LAWFUL PERMANENT RESIDENTS TO APPLY FOR THE I-601A WAIVER

SPOUSE OR PARENT OF PERMANENT RESIDENTS CAN APPLY FOR PROVISIONAL WAIVER

USCIS TO ALLOW APPLICANTS WHO ARE THE SPOUSE OR PARENT OF LAWFUL PERMANENT RESIDENTS TO APPLY FOR THE I-601A PROVISIONAL WAIVER

By Raul Ray, Esq.

An undocumented immigrant who has been in the USA unlawfully, and who wants to apply for  an immigrant visa in Mexico and a visa is currently available, may need a waiver to overcome any potential bar to admission due to unlawful presence.  A waiver is essentially asking the US government for forgiveness for committing an immigration violation such as being unlawfully present in the USA for a certain period of time.

The Illegal Immigration and Reform and Immigrant Responsibility Act (IIRIRA) enacted in September 1996 provides that undocumented aliens who reside unlawfully in the United States for 180 days or more but less than a year after April 1, 1997, will be ineligible for an immigrant visa or adjustment of status for 3 years if they subsequently leave the USA and reenter legally or attempt to reenter legally.   Undocumented aliens who have resided unlawfully in the United States for one year or longer after April 1, 1997, will be ineligible for an immigrant visa or adjustment of status for 10 years if they subsequently leave the USA and reenter legally or attempt to reenter legally.   

Prior to March 4, 2013, undocumented aliens applying for an immigrant visa at the US consulate in Ciudad Juarez  and  who were subject  to the 3- or 10-year bar because of their previous unlawful presence in the USA had to apply for a waiver known as the I-601 waiver to overcome the bar to admission.  To make matters worse, the applicant could only apply for the waiver while in Mexico and not from the USA.  Typically it would take about 6-12 months or longer for USCIS to render a decision on the I-601 waiver application.  During this time the applicant had to remain outside the USA until the immigrant visa process, including the decision on the waiver, was completed which caused families severe hardship due to the long separation.

However, as of March 4, 2013, USCIS recognizing the need to maintain family unity, created a new rule allowing certain immigrant visa applicants, subject to the 3 or 10 year bar to apply for a waiver in the USA rather than in their home country to overcome the unlawful presence bar. 

The waiver called the I-601A provisional unlawful presence waiver was a savior for those who wanted to apply for an immigrant visa in Mexico but didn’t want to deal with  trying to get an I-601 waiver approved while having to wait outside the USA for several months especially not knowing whether the waiver would even be approved by USCIS.

To be eligible to apply for the I-601A provisional waiver in the USA, the applicant had to show that (1) they are the spouse , adult child or parent of a U.S. citizen who can petition for the applicant  and (2) the applicant has a  U.S. citizen spouse or parent that would experience “extreme hardship” if the applicant is not allowed to remain in the United States.

On July 29, 2016, USCIS announced another new rule expanding the existing provisional waiver process to include individuals who are family members of either U.S. citizens or lawful permanent residents.   This means that now applicants can apply for the I-601A waiver from here in the United States rather than in Mexico regardless of whether the family petitioner is a US citizen or permanent resident and regardless of whether the family member who will suffer extreme hardship if the applicant is not allowed to remain in the USA is a US citizen or permanent resident. The new rule will become effective on August 29th, 2016. 

The final rule also makes changes to current Form I-601A, Application for Provisional Unlawful Presence Waiver and which will also go into effect on August 29, 2016. Applicants should not submit a request for a provisional waiver under the expanded guidelines until the final rule takes effect on Aug. 29, 2016. If you do so before that date, USCIS may deny the application.

The I-601A provisional waiver only applies to unlawful presence issues.  If an applicant needs a waiver for any other reason for example, a criminal conviction, then then I-601A provisional waiver will not apply.

Remember contact ONLY a qualified immigration lawyer or an accredited representative for legal advice or immigration relief concerning your case.  We will continue to keep you apprised on the very latest immigration news around the country.

For more information please feel free to contact Raul Ray, Attorney at Law, at Law Offices of Raul Ray, (408)279-5793, 1671 The Alameda, Suite 200, San Jose, CA  95126.  Email: raylawfirm@aol.com.

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