Starting in 2013, those who are seeking a Green Card in US and have found they must leave to pursue consular processing for past crimes/unlawful presence in the US may file a provisional waiver within the states to avoid having to go through this lengthy process.
This could be a huge boon to anyone who has potentially entered the US illegally and stayed in the states for at least six-months and is the parent, spouse, or child of a US citizen. Instead of having to leave the states and follow the traditional process of filing the I-601 Waiver of inadmissibility, they can file the provisional stateside waiver (I-601A) and get their answer without ever having to leave the states or face the possibility of perhaps not being able to return for 3 – 10 years if their traditional waiver is denied.
Even if the I-601A is denied, there are other options that such immigrants can pursue here in the states, especially with the assistance of a qualified immigration attorney who understands INA’s statutes on admissibility and the provisional waiver process.
When to File Your Stateside Provisional Waiver Application
Since those filing such provisional stateside waivers have already been determined inadmissible, the best thing to do would be to seek out an attorney before doing anything else. However, that’s not always feasible or possible, so here is some advice to help out:
Step One: You begin by mailing a VISA petition to the USCIS via Form I-130. If you are the immediate relative of a US citizen self-petitioning via Form I-360, there is a chance you don’t even need to file the provisional waiver in order to obtain a Green Card without leaving the US. Consult your attorney to determine if you can save yourself this time-consuming and complex step.
Step Two: In your Form I-130, make sure you answer Question 22 so as to indicate the applicant will be applying for a US VISA abroad at a foreign US consulate rather than in the US. This way they file the form with the National Visa Center. This must be in place for Form I-601 or I-601A. If you indicate you will file within the US, you’ll have to file extra forms and pay fees to get the form in the right place. This is one of the reasons it’s best to fill this form out with your immigration attorney.
Step Three: Upon approval of your I-130, you can then file your stateside provisional waiver, or Form I-601A which can be obtained from the USCIS’s website. You must wait until the Visa petition is complete before beginning the waiver process.
Step Four: You must expressly notify the NCC of your plans to file an I-601A. They even have an express email setup for this: NVCi601a@state.gov. This ensures they do not schedule your immigrant visa interview until after a decision has been made by the USCIS concerning your provisional waiver. If you do not do this, an actual interview may be scheduled for you at a US Consulate which would mean you’d have to call and notify them of your waiver and need to wait for a decision from the USCIS.
As indicated by the Department of State, once a stateside waiver request has been approved, immigrant visa interviews will take place 2 – 3 months later. Applicants are free to remain in the US during this waitperiod.
What to Include With Your Stateside Provisional Waiver
There are some key things you’ll want to be sure to include with your Provisional Waiver (Form I-601A) application to ensure it’s accepted. This includes things to prove your eligibility and that you merit the waiver request. The USCIS typically requests the following be included:
Your Form I-130 Visa Petition Approval Notice from the USCIS If you had been in immigrant court, you must include your EOIR Order of Administrative Closure
Proof that your qualifying relative is indeed a US Citizen or permanent resident (only if this person is not the same person who’s I-130 Visa Petition you are using)
Proof that this person is indeed related to you
Proof of the hardship your relatives would suffer if you left the US or were denied a VISA
Your DOS receipt for paying Immigrant Visa processing fees
There’s a lot of stuff here that could be up to interpretation. Specifically, extreme hardship. If you think it may be hard to demonstrate the hardship your family would endure, or if you are unsure at all about this or any other item on this list, that’s a good indicator you should secure the services of an experience immigration attorney before filing.
Additionally, while an interview is not a mandatory part of the application process, the USCIS reserves the right to interview applicants, so it’s best to be prepared to do so if called upon.
Provisional Waiver Application Fees
The fee for the Form I-601A as of the time of his writing (2016) is $585 USD. This is also the same fee as the regular waiver application, Form I-601. Other fees for those under 79 years of age include an $85 USD biometric fee. The Biometric fee covers the cost of fingerprinting and checking with the FBI for any known criminal records. If you believe that you or a family member may have a negative result from a criminal background check, consult a qualified US immigration attorney prior to filing.
Currently, no evidence suggests that DHS uses fingerprints obtained from biometric scans to locate and arrest undocumented immigrants. Additionally, there are no fee waivers available for these fees.
Things to Consider When You File
If your waiver application isn’t complete, this doesn’t necessarily mean that USCIS will deny it. Typically, the process is to send out RFEs when an application that lacks critical information is submitted. So if there is something critical missing, you should hear form USCIS. So if you’ve endured extreme hardship or other circumstances that merit not including information, you may be able to obtain a favorable decisions if warranted.
Of course, this is not a reason to leave out information. If you have it or can get access to it, you need to include it. Your best, most complete attempt at fully filling out your waiver application is imperative right from the get go. This is why I recommend meeting with a qualified immigration attorney if you are having trouble completing your waiver application. They will have the insight into the USCIS process and understanding of other relevant issues to help you decide what to do about any parts of your application that may not be complete.
One last note – you can have your entire application returned if you don’t follow the guidelines implicitly. So if you don’t include the fee, miss a signature, or include the wrong information, you may have to reapply. Hiring an experienced immigration attorney is a key to avoiding delays and possible denial of waiver.
What You Can Do if Your Waiver Request is Denied
There is no appeal process for a denial to a stateside waiver request by the USCIS. However, that doesn’t mean you have no options whatever. A few exist:
Option One: While your case with the DOS is still pending, you may file a new I-601A. However, this should only be done if you believe you have secured additional information that will overturn their original decision.
Option Two: This is a more risky tactic, but you could also proceed with the consular interview and traditional Form I-601. However, if you are denied, you will be unable to return to the Us for up to 10 years.
No matter what option you choose, you need to consult with a qualified immigrant attorney who understands the waiver process for grounds of inadmissibility. These are fairly complex issues, and while there is no fear of DHS showing up at your door if your I-601A is denied or withdrawn, there could be action taken if it is determined fraud or criminal activity has occurred. In all cases, your best bet is having an experienced immigration attorney you can trust to guide you through whatever process your individual immigration process requires.
Still Have Questions About Immigration?
The application for waiver of grounds of inadmissibility is complex and could be misfiled hurting your chances of gaining entry into the US. As an experienced immigration attorney who has worked with hundreds of clients to help them secure a better life here in the US, Yoel Molina is fully able, qualified, and dedicated to handle the various needs of his US immigration clients.
As an experienced and reliable attorney who has made it his business to help people seeking opportunities in the US, Yoel has the compassion and legal understanding of immigration law needed to help give his clients their best chance at successfully securing as US VISA or Green Card. If you or your loved ones are facing possible inadmissibility on your Green Card or Visa application, look no further than the Law Offices of Yoel Molina for help. Call us today!