Today the Department of Homeland Security announced the final rule for expanding the provisional waiver program. This is a huge change that will improve the logistical nightmare that is the current waiver process. Although this doesn’t fix the problem for everyone, it is a very good start.
The provisional waiver was created by the Obama Administration in 2012 to allow people subject to the 3 and 10-year bars to apply for a waiver of inadmissibility before they leave the United States to consular process their visas. The old way of doing things required you to leave and then apply for a waiver from outside the United States. That process often resulted in the beneficiary being stuck in their home country for months or years while waiting on the waiver decision.
That is still the process for most people, because the provisional waiver is so limited. Prior to today’s announcement you could only waive the ground of inadmissibility for having been out of status for a period of time (INA 212(a)(9)(B)) and only if your petition was a US citizen (not a permanent resident). Other grounds of inadmissibility weren’t waivable using the provisional waiver. As of August 29, 2016 (the effective date of the final rule), this is about to change.
So, what does the new rule change? Two very significant things:
1. Anyone Eligible for an Unlawful Presence Waiver Can Now File Provisionally (File Before Leaving the United States).
This move expands the ability to file the provisional waiver on Form I-601A to anyone who would be eligible for an unlawful presence waiver. So, anyone who as an approved immigrant visa (I-130, I-140, diversity, I-360) who has a spouse or parent who are US citizens or permanent residents and can show “extreme hardship” if not approved for the waiver. The beneficiary has to be physically present here in the United States when the waiver is filed. Once it is approved, the person can consular process their visas.
However, there is no new guidance on the “Extreme Hardship” standard. It was announced at the AILA Annual Conference open forum with USCIS that they would be announcing this guidance soon. I had expected it to come with the final rule on provisional waivers, but it didn’t. Alas…
2. People With Final Orders of Removal Will Be Eligible for Provisional Waiver if They Are First Approved For Advance Permission to Return on Form I-212.
This is actually somewhat surprising but highly welcome. Currently, if you have an old order of removal you’re not allowed to apply for a waiver in advance. You have to leave the United States and take your chances on applying for permission to come back. Most people with orders of removal entered in the last ten years will need to ask for “advance permission” before applying for a new visa. “Advance permission” is filed on Form I-212. Under the old rule, a client would have to leave the country, file an I-212 and get it approved, and then apply for the waiver and get it approved. That process can literally take years with the beneficiary (think your mother or your spouse) outside the United States the whole time.
The new rule says people with final orders of removal can apply for the I-212 in the United States. Once that’s approved, they can submit provisional waivers on Form I-601A in the United States. And once that’s approved, they can consular process their visas. This change means the time spent outside the United States could be reduced to a matter of a few weeks.
A Few Final Thoughts
I still have to read the rule a few more times, but there are a few other changes that might be significant. One is that the USCIS will no longer deny the I-601A for “reason to believe” the applicant is subject to other grounds of inadmissibility. One the one hand that’s good (because the “reason to believe” denials are sometimes based on nothing more than the officer’s hunch). On the other hand, that could be bad, because a person may end up processing their visas abroad only to find out that they do in fact have some other ground of inadmissibility and need to apply for another waiver. I have a feeling this change might lead to more people getting stuck outside the United States, especially those who file without a competent attorney scanning their case for all possible grounds of inadmissibility.
Another change is that the provisional waiver will be available now even if you had a visa interview scheduled before January 3, 2013. That was a silly addition to the original rule, which seemed designed solely to prevent people from “gaming” the system when they were already in line for waiver interviews outside the United States. If those folks are still in the United States because they ended up ineligible for provisional waivers, they’ll be eligible now.
All of this is a good example of the complexity (some might say “brokenness”) of the current immigration system. Congress could easily simplify all of this by getting rid of the 3 and 10-year bars. Although they were intended to encourage people not to be in the United States unlawfully, in truth they obviously encourage people to stay in the United States even without status. They have created these extreme penalties that aren’t triggered until you leave. For most people, that makes leaving a non-option, even if they would otherwise be eligible for a visa to come back. Because the risk of your mom or your spouse getting stuck in another country for ten years is, for most people, too high.
Hi my name is Rubisel i have cort whit imigracion can apply for l-601 A here in usa or i have to go back to mexico
The I-601A is filed and adjudicated here. If it is approved the beneficiary then goes back. But there is a lot more involved. You need an approved visa petition, a current visa number, etc. I can’t say whether you would be eligible without knowing more.
Can my mother file for the I-601A after I file the I-130 for her, before they told me there was no waiver available from child to parent
Possibly, but does she have a qualifying relative? The unlawful presence waiver requires a showing of hardship to her spouse or parent who is a US Citizen or Permanent resident. Does she have a spouse or parent who is a US citizen or a permanent resident? If not, then she’s not going to qualify for the waiver. The Unlawful Presence ground of inadmissibility is found at INA 212(a)(9)(B). The waiver is found at INA 212(a)(9)(B)(v) and reads as follows: “The Attorney General has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. No court shall have jurisdiction to review a decision or action by the Attorney General regarding a waiver under this clause.”
Would My husband of 8 years be eligible for this Waiver, if he unlawfully entered two times and applied for a visa(but was denied) before returning the 2nd time. No orders of deportation and has had no run-ins with immigration. I have been told that he would automatically be under the “permanent Bar” from the U.S. because of entry without inspection two times. Would he be eligible for this waiver?
Depends on the dates. Many attorneys misinterpret the “permanent bar” to mean anyone with two entries is barred. That is false. The “permanent bar” under INA 212a9C is triggered in two ways. First, if you get ordered removed, leave, and renter unlawfully. Second, if you are unlawfully present for at least a year after 4/1/97, leave, and the reenter unlawfully. In your husband’s case it depends on how long he was here after 4/1/97, when he left, and when he came back. It also depends on How He came back. Some kinds of entries aren’t considered unlawful entries (like being waved through as the passenger in a car). This is complicated stuff. it would be a good idea to schedule a time to talk with a reputable attorney who understands the permanent bar. If he is subject to 212a9C then he can’t apply for an I-601A waiver.
Can a person with the unlawful status, with approved I-140 but with no family member who is either a citizen or green card holder still apply for the waiver? What are the rules for employment based green card applications ? Thank you
The waiver requires a qualifying relative, because the basis for the waiver is a showing of hardship to your spouse or parent who is a us citizen or permanent resident.
Hello, My husband has a voluntary departure from 2005 can he apply for I 601 A.?He is currenty has daca.
I can’t tell, because there are a few other issues (not leaving on VD can cause other problems, might have a permanent bar if he had previous entries, etc.). Also would be interested to hear if he has travaeled with his DACA. Feel free to get eat in touch at the link above.
I been married for 3 years, I’ve been living in us for the last 13 years, I stayed with c1d1 crew member visa…now can I get a provisional waiver? Never arrested or felony. Thanks
I can’t tell without more information. Is your spouse a citizen or permanent resident? I would also need to ask you about a series of other grounds of inadmissibility. Feel free to contact me at the link above if you want to schedule a time to discuss.
hello rogel i use to have C1d1 crew member visa , i applied for the I601A waiver and i got approved, stay strong.
Theredstone can you leave more details how did you get approved for I601A on C1D visa, pls.
hello Rogel. this is Threadstone and i i will like us to communicate via email so i can elaborate more on the how to .. thank you
Hi!
I’m on c1d visa here in usa from 2007.
I have a 5 year old son but not married.
But I broke up with my son’s mom.
Can you guide me how to get i 601 waiver so that I can visit my parent’s.
Vinod_chef2@yahoo.co.in is my email
Need info for I 601 waiver please reply me on my email vinod_chef2@yahoo.co.in
I’m on c1d visa here from 2007
HI threadstone can i have your e -mail please. i am also in the same situation please kindly help.thank you
Hi I’m on c1d visa also if u have any information regarding I 601 waiver can u please share .
My email address vinod_chef2@yahoo.co.in
I was looking to petition for my parents, my father has a order of deportation. Because years ago he applied for a working permit through a immigration attorney, which they advised to him. It ended up harming him in the long run. My mother has her father who is a U.S. Citizen. When he petitioned for her she was recently married and he applied for her as single and for that reason she was denied.
Are you asking me if you can petition for your parents? I don’t have enough information. It sounds like your mother has a qualifying relative for a waiver (her father) but I would need to know a lot more. It would be a good idea to sit down with a reputable immigration attorney to discuss. If you’re not in the Kansas City area let me know where you live and I can recommend a trustworthy attorney.
Hi, I have a final order of removal, but I have a stay of removal approved, my wife is American citizens . Can I apply for I-630?
Maybe. The I-601A only waives inadmissibility for unlawful presence. And you need a qualifying relative. If you have other grounds of inadmissibility or don’t have a qualifying relative then the I-601A isn’t an option.
My husband’s I-601A waiver was approved but we can’t wait around for the letter with his interview notice. There is an emergency in his family in his home country and he needs to leave the US to be there within the end of the month. Will he get into any sort of trouble by leaving early or can his approval be revoked? Thanks!
He should be able to leave if the I-601A was already approved. But I can’t advise about any specific case because I don’t know all of the issues in his case. The I-601A will only waive unlawful presence. If he has other grounds of inadmissibility, leaving would be a problem. Probably a good idea to meet with an attorney to review inadmissibility issues before he leaves.
Hi I am a us citizen my husband had a deportation in 2010 due to a fail asylum ( he never left the country ) . After marriage he hoy approve for an I-130 and also have daca . Is he elegible to apply for a waiver ?
It sounds like he may be eligible now that they have expanded the I-601A, but I would have to know more about him to know. It would be a good idea to set up an appointment with an attorney to talk about his case and go over all of his facts. Good luck!
Hi is there any hope for a waiver with more than 1 marijuana use charge?
The I-601A only waives unlawful presence, unfortunately.
Hello im a us citizen i was wondering if my husband qualifies for this waiver. He first entered the us in 03, he then had a voluntary departure in 2011 and came back that same year both his entrees were through the desert
I can’t tell you for sure, but I would be worried about the permanent bar under INA 212(a)(9)(C). He was unlawfully present for at least a year, left, and reentered without permission. That would likely trigger the 212(a)(9)(C) bar which would mean he can’t file this waiver. With that said, I can’t evaluate that without talking with him and looking at his documents.
Hi,
My wife has an order for deportation and she has been here since 1990. I’m the husband and I’m a US citizen and we now have a teenage child. We also have an approved spouse petition. What are her chances for a waiver and getting approved?
Yes, it’s possible with the expanded waiver that a person who has been present since 1990 and has a deportation order might be eligible for the waiver. In fact, she might be eligible for a number of things. It’s hard to say for sure without talking with her. Her “chances for getting approved” depend on (1) whether she’s eligible, and (2) whether she can demonstrate “extreme hardship” to her qualifying relative(s).
Hi, my friend apply for the I-601A (His wife is US Citizen), USCIS received his fingerprints on 7/2016..then USCIS send him an appointment to go for the Biometrics/fingerprints in Aug. 22, 2016. He had applied for the I-130 back in 10/2014. This means he is accepted? what is the next step? How long usually takes for an interview? He is from Ecuador.
Every case is different. Our most recent I-601A took 4.5 months from the date of filing with no request for evidence.
Hello,
My last entry was in 1993 with F1 and I graduated. My asylum application was denied(not fraudulent) and IJ granted me VD in 2003. I didn’t leave. I’ve been with my wife for 20 years, married for 5 years and she is currently LPR and hopefully will be USC next year. She has bulimia and bipolar and her ankle broke last year so I have to help her drive to work from time to time. She is a RN and would like to continue her education to earn MS in Nursing. We don’t have kids but we want to once my immigration hurdle is settled. We both paid taxes for past 20 years with no single criminal record. According to this new expansion, there is confusion about over staying VD and not being eligible for I601A and also on the other hand once VD is overstayed, it will be automatic final removal order so applicant could be eligible. I’ve learned that AILA is waiting for the clarification from USCIS since those new rules came out. I’d like to know if there is any update on this. Thank you in advance!
The thing we don’t know is how they’ll treat the 10-year bar for failing to voluntarily depart. However, you could attempt to reopen your court case once your wife files for you and you have an approved visa petition. If the court reopens then you wouldn’t need a waiver because you have a lawful entry. This is somewhat tricky stuff, so if I were you I would set up a time to talk with an attorney about your options.
Hi my husband has been in Mexico for 4 yrs and we sent the waiver packet in July of 2016 how long do we have to wait for a response for an appt
The I-601A is for immigrants who are still in the United States. If your husband is in Mexico, then he isn’t eligible to file the provisionaly waiver. He would need an I-601 waiver after his visa petition is approved and he has his consular interview. Those are quite tricky. I would suggest sitting down to talk with an experienced immigration attorney if you haven’t already.
My husband entered once about 15 years ago, in 2012 he got a VD but never left. I have read that overstaying a voluntary departure turns into order of removal. Does he qualify to do the I-212 and then I-601a. I am a US citizen
I can’t give case-specific advice regarding these comments. Yours is a complicated case, and you should sit down with an experienced Immigration attorney to go over his options.
Have you received any approvals from I-601A application using the new extension (extreme hardship to LPR parents) from an older than 21 years old daughter?
I filled and received the confirmation, it says that uscis will schedule my biometrics appointment. I’m feeling very anxious, and time seems to pass way too slowly. I would like to know how long it usually takes to receive the biometrics appointment and then approval.
I have a very solid case.
I can’t talk about other clients’ cases. However, you should know that it can take a number of months to get a decision on an I-601A.
Good afternoon.
My “wife” and I got divorced many years ago so she would be eligible for q F2b visa.
We reside in USA since very young of age, we have 2 US born daughters.
She is very close to traveling abroad for her visa interview, for which she will receive a PR. Her attorney told her that she can get married right away after receiving her PR.
I entered legally to the USA when I was 9years old, I over stayed my tourist visa and went to school here. Do I need to file an I-601A apart from the I-130? I believe I don’t need to travel abroad for an interview.
I would like a second opinion to what my wife’s attorney said.
I can’t give legal advice in response to these comments because I don’t know enough about the facts of your case to know if you’ll need an I-601A. If you want a second opinion, I suggest scheduling a time with a competent attorney to have them review your facts and they should be able to tell you what you’re eligible for. Good luck!
My husband was caught once by cbp in May 2003 and he signed a VR. He entered a few days later June 2003 and has never left the US. Is he eligible for the provisional waiver?
It depends on a number of other factors, which I can’t tell from what you’ve written. It would make sense to have a consultation with an attorney who handles I-601A waivers to determine if he’s eligible. The waiver only waives inadmissibilty for “unlawful presence.” However, there might be a different waiver if your husband is inadmissible for some other reason. It’s best to talk with an attorney about it.
Hi
I entered with my B-2 visa which expired. I had to overstay my visa because my mother who is LPR was sick and had no one to care for her. Do i qualify for a I-601A waiver if my mother files an I-130 for me?
I came with a crew member visa in 2006 now im married with and American citizens and i also own 2 companies with my wife can i qualified for any type of adjustment in my status
You should meet with an immigration attorney. Crew member issues are complicated. It depends on what kind of visa you had and several other factors. If I were you I’d contact a local immigration attorney who knows about these issues and pay for a consultation.
Hi
I filed a waver 601a for my wife on November 2016. I still have not received any news or a receipt. Are the waivers backed up ?
Every case is different and some get backed up because of biometrics or further investigations they’re conducting. Don’t forget to keep in touch with the NVC. If they don’t hear from you for a year they can terminate the visa. So if you’ve got a long wait on an I-601A it’s a good idea to just send an e-mail or letter to the NVC every once in a while just saying “hey, we’re still here and want to pursue the visa but we’re waiting on the waiver.” Also, it’s possible to request that adjudication be expedited if you have a true emergency. https://www.hoppocklawfirm.com/2016/12/how-to-expedite-a-visa-or-benefit-request-with-uscis.html
Hi,
My mother in law was arrested at the border in 1983 by, then, USINS border patrol in Laredo, TX. She re-entered a couple of years later with no inspection. A petition I-130 was filed by her U.S. Citizen husband and was approved. She recently received notice from NVC about her invoice fees, preparing for consular processing. She’s never been arrested since 1983 and has been in the US for over 30 years. Should she file an I-601A and an I-212 concurrently? Or should she file the I-212 first and then the I-601A? Extreme hardship can be proven given she has 3 US citizen children.
Not sure why she would need an I-212 if she doesn’t have a removal order. Also, I’d make sure she’s not eligible for adjustment of status before sending her to consular process. If she reentered in roughly 1985 did anyone file anything for her after that? I’d want to make sure she’s not grandfathered under 245(I) first. Also, did she reenter on foot or in a car? If by car, then perhaps she was “waved through” under Matter of Quilantan which would make her eligible to adjust her status here, rather than have to leave.
Hi Matthew,
Thank you for replying back. My mother-in-law entered by foot shortly after she was deported back in 1983. The proof is in her marriage certificate. She married her then permanent resident alien husband in 1984 in Dallas, which he’s now a US citizen. She doesn’t have a removal order and there’s no record with EOIR about the arrest (According to the notes in her file from her previous attorney). I also called the 1800 number to inquire on with her current “A” number and the one assigned in 1983, to see if she was under removal proceedings and the system couldn’t find any record either. Her arrest only came up in 2003 when an attorney helped her get her paperwork started and fingerprints were taken when applying for form I-539. The rap sheet shows “Charged: Dep Proc” and says “6 mo s/s 3yrs”. She remembers staying one night in jail and then she was deported the next day. Before deportation she went in front of a judge in 1983 and remembers the judge saying he didn’t want to see her back in the US for 5 years. According to the notes from her previous attorney, he interpreted the rap sheet as a suspended sentence.
USCIS asked for additional information for form I 539 in 2001 and the attorney wanted more money. After spending over $12k and going through all their savings, she decided to not continue the process at that time. Fast forward to about a year ago, I went to USCIS office with her US citizen husband to inquire on any paperwork they may have and they stated since it’s been so long, her file had been destroyed and we would have to start all over again. Same thing happened with NVC. We haven’t paid any invoice fees yet because I’m not sure where to go from here. Thanks again for your help!
It would be a good idea and talk with an honest local attorney about your options. It’s worth the consultation fee. If she was deported in 1983 and reentered on foot again in 1983 then the only way to avoid consular processing (leaving the country) to finalize her visa is if she’s grandfathered under INA 245(i). To be grandfathered someone would have had to have filed a visa petition or application or labor certification for her on or before April 30, 2001. What you’re saying about the I-539 is confusing because if she was already out of status she wouldn’t have been eligible to pursue an I-539. Again, likely a good reason to sit down with a smart, honest immigration attorney near you. I can refer you to someone if you tell me the city where you live. Feel free to send me an e-mail rather than respond to this comment. matthew@hoppocklawfirm.com
Final note – because her deportation order was “executed” (i.e. she already left the U.S. pursuant to that order) she shouldn’t need an I-212. And it’s old enough that she isn’t subject to “reinstatement of removal” so her case will just proceed like a normal case where someone is here after entering unlawfully.
Another thing – qualifying relatives for an I-601A waiver under INA 212a9B can’t be the kids. Must be a spouse or parent who is a citizen or permanent resident.
Hello, my husband came illegally to the USA on 2008, more than a year later in 2010 he left as an emergency and came back but was caught and returned him home that same day. He left voluntarily but still on their records. He came back later 8 months later as he got hurt crossing the border when he got caught and made it in. I am a us citizen and hired an attorney, we told the attorney what I describe and she said we can still apply and will also have to file the waiver I601a. Filed i130 and i601a and all other necessary documents and all got approved and now we are just waiting for the ciudad juarez consulate interview. Well my attorney forgot that my husband entered the us 2 times and the last date she remembered was when he got caught crossing the border and she meant to put the date of his entry on record with border patrol and she put the date he first entered. Well I’m now so worries that he wont be able to return and my attorney said if they ask of the date entered to say he entered 2010 when he got caught and not the first date and that the attorney made a mistake of the date. Can something be done in this situation or should we not go tithe interview as he might not be able to return. Please help with this inquiry.
Yikes. No attorney should ever advise you to lie. A visa interview is done under oath and lying is against the law. It can also make much bigger problems for him later. Can anything else be done? I don’t know without more information. But from what you have described it sounds like he might be inadmissible under 212a9C. If so, the I-601A won’t fix this problem. Might want to get a second opinion from an honest local attorney before sending him out of the country. Perhaps there’s something else he’s eligible for that doesn’t require him to leave (like a U visa if he has been the victim of a crime here, for example)
i did my husbands papers and we filled out all the info including the I 601a which was approved before his appointment at the embassy he did his medical exam in Mexico and they postponed his appointment due to more medical testing we waited the 10 weeks to hear he had nothing wrong with him then we rescheduled his appointment for 7-31 they told him he was approved and gave him a letter stating this then his status changed on the website while checking for his visa from issued to refused to transfer in progress he went to pick up his passport yesterday and got the letter of denial stating 212a 9 b II and also 212 a 9 c I . Why did the form I 601a not work and now hw cannot come back until may of 2028 ?? I don’t understand this please advise if this is true Do I have to move to Mexico if I want to keep my marriage of 9 years?
Because the waiver only waives unlawful presence under INA 212(a)(9)(B). It doesn’t waive INA 212(a)(9)(C), which is the ground of inadmissibility for people who have entered unlawfully after being deported or after having been in the US unlawfully for a year or more. Consular processing was never going to work for him if he was inadmissible under INA 212(a)(9)(C). Now that he’s in Mexico, the only way for him to come back permanently is to wait the ten years and then ask for permission to return by filing a Form I-212. It would be a very good idea to talk with an attorney, because decisions in an immigration case can have very serious consequences.