What is a waiver?
The simple Definition of waiver is the act of choosing not to use or require something that you are allowed to have or that is usually required or an official document indicating that someone has given up or waived a right or requirement
Here it is the government waiving the 3 or 10 year bar of admission of someone who has illegally entered the United States and has been illegally present in the United States for over 6 months.
What is a provisional waiver?
The Provisional Unlawful Presence Waiver, known as form I-601A, allows persons to stay in the United States with their spouses, parents, or children, while the waiver is pending. Before March of 2013, this happened through the U.S. Consulate in the person’s home country. This now happens in the United States, but everything needs to be done right.
What does a provisional waiver do?
Since March 4, 2013, certain immigrant visa applicants who are immediate relatives (spouses, children and parents) of U.S. citizens can apply for provisional unlawful presence waivers before they leave the United States for their consular interview. The provisional unlawful presence waiver process allows immediate relatives who only need a waiver of inadmissibility for unlawful presence to apply for that waiver in the United States before they depart for their immigrant visa interview. This means that the provisional waiver only waives one unlawful entry.
What is the legal test for a provisional waiver?
Besides having an I-130 or an I-360 form approved eligibility requirements for an Unlawful Presence Waiver, you must be
- 17 years old or older
- The spouse, child or parent of a U.S. citizen
- In the processes of a pending immigrant case and have paid the processing fee to the Department of State
- Able to demonstrate that your absence from the US will cause hardship for your spouse or parent
- Physically present in the United States
- Willing to provide biometrics, such as fingerprints, for a U.S. database
- Not scheduled for immigrant visa prior to Jan 3, 2013
What is extreme hardship?
To be extreme, the hardship must exceed that which is unusual or expected. The hardship need not be unique, nor is extreme hardship as demanding as the exceptional and extremely unusual hardship standard applicable to Cancellation of Removal Part B. Draft USCIS Policy Manual, Volume 9: Waivers. Unfortunately USCIS has not finalized their policy manual or released the finalized version to the public, by today. Therefore it is necessary to comb the case law for precedent decisions close to your facts that show an extreme hardship.
How Much Proof Is Enough?
The test for immigration benefits is a preponderance of the evidence on a percentage scale 51%. The problem most individuals have is that they know they will suffer a hardship, but proving the hardship is extreme requires an objective view point.
To prove your point you will want to show every bit of evidence you have. The adjudicating officer does not know you and will never meet you. You must prove your points with documentary evidence so clear the officer must agree with you.
What If I do not prove enough?
If you do not at least assert the elements of the legal test above USCIS will deny your case and not even send you a Request for Evidence (RFE)
30 day response to RFE, no extension
A Request for Evidence is sent out when the adjudicating officer does not have enough evidence to prove one or more elements . A 3/1/13 USCIS policy memo amends previous interim RFE guidance and limits the time that USCIS officers may provide an applicant to respond to a Request for Evidence (RFE) that is issued in relation to an Application for Provisional Unlawful Presence Waiver, Form I-601A to 30 days.
A proper response to a RFE restates the law, establishing the proper standard of proof and persuasion and providing the facts to prove all elements in doubt and buttressing any other elements with the new facts .
What if it is denied?
Some applications for an I-601A provisional waiver are denied. Perhaps an applicant has additional problems and not just resided in the United States unlawfully for much longer than one year, or has left the country and returned to the United States without inspection on more than one occasion. Or, maybe an application was not completed accurately under United States immigration rules and procedures. Further, there may have been a lack of documentation demonstrating extreme hardship, as required for any I-601A provisional waiver.
Whatever the reason may be for denial, it can devastate for any applicant seeking to live in the United States as a lawful permanent resident. Unfortunately, there is no appeal process when applications for I-601A provisional waivers are denied. Whether or not an application should be granted is subjective and discretionary. Further, there are so many applications that an appeal process would only slow down reviewing I-601A provisional waiver applications.
While you cannot appeal a decision by USCIS to deny your application for an I-601A provisional waiver, you can apply a second time. If you apply a second time, you must demonstrate that you and your close United States citizen or lawful permanent resident relative (parent, spouse, unmarried children), fulfill the requirement of extreme hardship.
However, be aware that USCIS will look to see if your circumstances have changed for the worse from the first, denied application, to the second application. Extreme hardship may not have been adequately proven with the first application, but something has changed that would now qualify as extreme hardship.
To ensure you have completed the I-601A provisional waiver application and accurately, consult with an experienced immigration attorney who can walk you through the process and provide guidance on the steps you must take to increase your chances of obtaining the I-601 provisional waiver.
What if it is approved
First a brief celebration is in order. You have worked hard to get your waiver approved. Then it is time to finish your processing with the National Visa Center and to get prepared for your in person interview at the Consulate.