Provisional Unlawful Presence Waivers Explained
Since March 2013, certain immigrant visa applicants who are immediate family members (spouses, children, and parents) of U.S. citizens can apply for provisional unlawful presence waivers. They do this before leaving the United States for their consular interview. As of August 2016, this process was expanded to all individuals eligible for an immigrant visa. It also applies to those seeking a waiver of inadmissibility for unlawful presence in the United States.
What are Provisional Pardons?
Provisional waivers enable noncitizens to travel abroad for an immigrant visa when unable to adjust status in the US. Those with over 180 days of unlawful presence in the US must obtain a waiver. This waiver addresses barriers under section 212(a)(9)(B) of the Immigration and Nationality Act. Only after obtaining this waiver can they return.
Provisional Forgiveness Process
This process allows those who are eligible for an immigrant visa to apply for a waiver of inadmissibility for unlawful presence in the United States. They can do so before departing for their immigrant visa interview, facilitating smoother immigration proceedings. It was developed to shorten the time that U.S. citizens and lawful permanent resident family members are separated from their family members. This helps them obtain immigrant visas to become lawful permanent residents of the United States more efficiently.
Eligibility Requirements for Waivers
To be eligible for a provisional unlawful presence waiver, you must meet all of the following conditions:
• Ensure physical presence in the United States to submit your application and provide biometric data.
• Must be at least 17 years old.
• Be in the process of obtaining your immigrant visa and have a pending case with the Department of State (DOS).
• Demonstrate that denial of your admission to the United States will cause extreme suffering to your U.S. citizen or legal permanent resident spouse or parent.
• Believing that you are or will be inadmissible only for a period of unlawful presence in the United States.
How to Apply for Waivers?
Follow Form I-601A instructions, complete it, and submit supporting documents. You cannot file Form I-601A with another application or petition.
Approval of Form I-601A
Provisional waiver approval doesn’t confer benefits or shield from US removal. It also does not allow you to request intermediate immigration benefits such as work authorization or parole. Additionally, it doesn’t grant legal status or alter the need to leave for an immigrant visa.
Revocation of Provisional Pardon
Your approved provisional waiver may be revoked if DOS terminates processing your immigrant visa application or if USCIS revokes the underlying immigrant visa petition. Furthermore, a consular officer may determine you are ineligible for the visa, leading to waiver revocation.
If You Are in Removal Procedures
During removal proceedings, you can’t apply for a provisional waiver without case closure by an immigration judge or Board of Immigration Appeals.
IMPORTANT: A U.S. citizen child does not make you qualify for the provisional waiver
The provisional waiver was established by President Obama in 2013 where it allowed only family members of U.S. citizens to benefit from this waiver. On July 2016, President Obama expanded this waiver to include family members of legal permanent residents.
Once your I-601A provisional waiver is granted, you can safely go to your home country for the visa interview knowing that you will return to the U.S.
If you have a pending immigration court case or you were granted a voluntary departure by the immigration judge, you could also qualify for this waiver. Contact attorney Yunuen Mora of Cross Border Lawyer so she can assess your case.
I-212 Permission to Reapply for Admission
If you were deported or have multiple immigration violations or were convicted of an aggravated felony, you need to apply for this waiver. Accordingly, you must establish various factors based on your specific circumstances.
In July 2016, the Department of Homeland Security introduced an opportunity to apply for I-212. This opportunity is for individuals in removal proceedings who were granted voluntary departure but never left the United States. This initiative aimed to address the situation for those who remained in the country despite being granted voluntary departure orders. These individuals can file the I-212 within the United States. Then, they can apply for the I-601A waiver for unlawful presence. Once both waivers are approved, these individuals can safely travel to their country of origin for their visa interview.
If you think you qualify for a waiver, please contact attorney Yunuen Mora so she can help you with this complex process.
