Published August 8, 2016
Back in 2013, the US Department of Homeland Security/Citizenship and Immigration Services first implemented a “stateside” I-601A Waiver program, an initiative allowing for the processing a “waiver of inadmissibility” for certain green card applicants who under current law, are not eligible to adjust their status and undergo final green card processing in the U.S. Under the system previously in place, such applicants were required to depart the U.S. to their home country for a period of many months and appear for their final immigrant visa (green card) interview before a consular officer outside the U.S. and await a decision on the waiver application there.
With the 2013 implementation of the stateside waiver program, applicants must remain only a few days or a week in their home country for the final processing of their immigrant visa, instead of the previous 3 month wait. Essentially, the 3 months of processing that used to take place while the applicant was waiting in their home country, now could be waited out in the U.S. Further, if the application for a waiver is denied, then the applicant – who remains in the U.S. while the application is pending – knows he/she has no reason to depart the U.S. to further pursue immigrant visa processing.
Under the new program, set to go into effect on August 29, 2016, the pool of eligible applicants has expanded. Now, eligible applicants include not only those who have spouses or parents who are U.S. citizens, but also for those with spouses or parents who are lawful permanent residents, and for any category of Family or Employment based visa petitions where there is an approved visa petition and an immigrant visa is immediately available for purposes of immigrant visa issuance. Importantly, these latter two requirements are absolute prerequisites for provisional waiver eligibility. In all cases, the success of the waiver application depends on the applicant being able to prove that their denied reentry into the U.S. would pose extreme hardship to that U.S. relative.
First, who benefits from this new program? Most applicants availing of this program are spouses of U.S. citizens who have been present unlawfully in the U.S. for an extended period after previously entering the U.S. without being inspected/without a visa. And unless they are eligible to adjust status in the U.S. per INA Section 245(i) (another discussion), these applicants only have the option to legalize their stay in the U.S. by eventually departing the U.S. and reentering after their immigrant visa is processed at a U.S. consular post abroad. Importantly, this pool of applicants is to be distinguished from those who indeed entered on some sort of visa, but who merely overstayed (excluding crewman and K-1 entrants), and whose eligibility to undergo all processing in the U.S. continues, if they marry a U.S. citizen. These applicants’ eligibility to adjust status in the U.S. continues notwithstanding the fact that they overstayed their visa status or worked without authorization.
As stated above, now the pool of applicants for the provisional waiver has been expanded to not only include those whose spouses and parents are only permanent resident (as opposed to being limited to only U.S. citizens) as well as employment based applicants (in addition to family based applicants) who are otherwise not able to adjust their status in the U.S. Again, an applicant to be eligible for consideration, they must first be the beneficiary of an approved family or employment based visa petition AND where there is an immigrant visa immediately available of their category of visa petition.
As stated, if the applicant’s waiver application is denied, that decision will be known before any trip outside the U.S. takes place. The applicant then knows there truly is no reason for the he/she to appear for their interview before a U.S. consular officer in their home country, since he will know he will indeed be subject to a bar to reentry that has NOT been waived or excused.
The expansion of the program is good news to foreign nationals who are not “Immediate Relatives” of U.S. citizens, and who previously were not willing to face the risks and vulnerabilities of departing the U.S. to have their waiver application decided.
Lastly, it should be noted that it is only “unlawful presence” that gets excused by way of the stateside provisional waiver program. For foreign nationals facing other obstacles to admission/U.S. permanent residence eligibility, such as previous misrepresentations, visa fraud concerns or criminal activity, the stateside provisional waiver program would be of no benefit.
In any case, those considering seeking immigration benefits by way of a provisional waiver filing, are advised to consult with a knowledgeable and reputable immigration attorney and obtain a candid assessment on eligibility and the risks that come with pursuing such an application.
PUBLISHED August 8, 2016– “IMMIGRATION LAW FORUM” Copyright © 2016, By Law Offices of Richard Hanus, Chicago, Illinois