What is a provisional waiver?
Waivers for certain immigration violations are available in limited circumstances. A waiver is when the government excuses certain factors from rendering someone ineligible to obtain lawful residence in the United States or in some way aids an individual in affording lawful entry into the United States.
The provisional unlawful presence waiver (8 C.F.R. §212.7(e)) addresses the inability to obtain lawful residence for immediate relatives who have been barred from obtaining residence due to unlawful presence for 3/10 years. Since 2013, this provision has given hope to families who have struggled with maintaining their normal family lives due to the strict application of the law. It affords someone the ability to file a waiver request and receive a determination before they leave the country in order to complete the process of adjustment of status.
Who May File Form I-601A?
You may file this application to seek a provisional unlawful presence waiver if you:
Are physically present in the United States;
Are at least 17 years of age at the time of filing;
Are the beneficiary of an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, that classifies you as the immediate relative of a U.S. citizen;
Have a pending immigrant visa case classifying you as an immediate relative with the Department of State (DOS);
Believe you are or will be inadmissible only for a period of unlawful presence in the United States that was: More than 180 days, but less than 1 year, during a single stay (INA section 212(a)(9)(B)(i)(I)); or B. One year or more during a single stay (INA section 212(a)(9)(B)(i)(II)).
Who Is NOT Eligible to Receive a Provisional Unlawful Presence Waiver?
You are not eligible for a provisional unlawful presence waiver and U.S. Citizenship and Immigration Services (USCIS) will deny your application if any of the following apply to you:
You do not meet all of the requirements listed in the Who May File Form I-601A section of these Instructions;
You have Form I-485, Application to Register Permanent Residence or Adjust Status, pending with USCIS;
You are in removal proceedings, unless your removal proceedings are administratively closed and have not been placed back on the Department of Justice, Executive Office for Immigration Review (EOIR), calendar to continue your removal proceedings at the time you file your Form I-601A;
You fail to establish that your U.S. citizen spouse or parent would experience extreme hardship if you are refused admission to the United States or that USCIS should approve your application as a matter of discretion. You must establish that refusal to admit you would result in extreme hardship to your U.S. citizen spouse or parent if the U.S. citizen spouse or parent chooses to remain in the United States without you or chooses to relocate abroad to reside with you outside of the United States. You must also establish that your case warrants a favorable exercise of discretion by showing that favorable factors in your case should be given more weight than the unfavorable factors; and
USCIS has reason to believe that you may be subject to grounds of inadmissibility other than unlawful presence under INA section 212(a)(9)(B)(i)(I) or (II) at the time of your immigrant visa interview with a DOS consular officer.
You must show that you have a U.S. citizen spouse or parent (qualifying relative) who would experience extreme hardship if you are refused admission to the United States. The qualifying relative does not need to be the relative who filed the immigrant visa petition to classify you as an immediate relative, but he or she must be your U.S. citizen spouse or parent.
Evidence of extreme hardship includes, but is not limited to:
Expert opinions;
Evidence of employment or business ties (for example, payroll records or tax statements);
Evidence of monthly expenditures (for example, receipts from mortgage, rental or bill payments);
Other financial records that support any claimed financial hardships;
Medical documentation or evaluations by medical professionals that support any claimed medical hardships
Records of membership in community organizations or confirmation of volunteer service, and evidence of cultural affiliations;
Certificates of birth, marriage, or adoption that support any claimed family ties;
Affidavits from the qualifying relative or other individuals with personal knowledge of the claimed hardships;
Country condition reports; and
Any other evidence you believe supports the claimed extreme hardships.
Establishing That Your Case Warrants A Favorable Exercise of Discretion
Approval of Form I-601A is discretionary. To determine if your case warrants a favorable exercise of discretion, USCIS will review the evidence in the records and weigh all favorable and unfavorable factors when deciding whether to approve your application as a matter of discretion. You should describe the favorable and unfavorable factors in your case and explain why you think the favorable factors should be given more weight.
Some favorable factors may include, but are not limited to:
Close family ties in the United States;
Hardship to your relatives who are U.S. citizens or lawful permanent residents, or to yourself, or your employer in the United States;
Evidence of reformation and rehabilitation;
Length of lawful presence in the United States and your immigration status while you were lawfully present;
Evidence of respect for law and order, good moral character, and family responsibilities or intent to hold family responsibilities;
Absence of significant undesirable or negative factors; and
Likelihood that you will become a lawful permanent resident in the near future.
Some unfavorable factors may include, but are not limited to:
Evidence of bad moral character, including criminal tendencies reflected by past convictions or an ongoing unlawful activity or continuing police record;
Repeated violations of U.S. immigration laws and a willful disregard for other laws;
Absence of close family ties or hardships;
Fraudulent marriage to a U.S. citizen for the purpose of gaining an immigration benefit; and
Unauthorized employment in the United States.
If you believe this is a situation that may apply in your case, it is best to obtain the advice and representation of a qualified attorney. Call us at FRANKEL LAW at 305-759-6100 in Florida or toll free at 1-800-394-EVAN (3826) elsewhere and we can help you.
