The provisional waiver process is only available to applicants who are inadmissible solely due to unlawful presence under Immigration and Nationality Act (INA) §212(a)(9)(B). Therefore, if you are inadmissible based on any other ground, U.S. Citizenship and Immigration Services (USCIS) will deny the Form I-601A, Application for Provisional Unlawful Presence Waiver. It’s important to note, however, that for provisional waiver eligibility, the test is whether USCIS has “reason to believe that the applicant may be subject to grounds of inadmissibility other than unlawful presence at the time of the immigrant visa interview with the Department of State (DOS).” USCIS will deny the provisional waiver if it determines that DOS “may” find the applicant inadmissible based on any other inadmissibility ground that may relate to the applicant’s conduct or circumstances.
Under this standard, USCIS may deny a provisional waiver where a person has a conviction that may be a disqualifying crime of moral turpitude, leaving that final assessment of this issue to the consular official adjudicating the case. Similarly, an applicant with a driving under the influence (DUI) arrest history faces possible health-based inadmissibility that may only be determined by the panel physician abroad; it remains to be seen whether USCIS will view such an applicant as ineligible for a provisional waiver under this “reason to believe” standard.
Although an approved provisional waiver indicates that USCIS does not believe the applicant is inadmissible for reasons other than unlawful presence, DOS will screen the immigrant visa applicant for possible inadmissibility at the time of the visa interview. If the consular officer determines that the applicant is inadmissible for a ground other than unlawful presence, the regulations provide that the provisional waiver is automatically revoked. The applicant must then file a Form I-601 waiver application with USCIS and have it approved before he or she is eligible for visa issuance.
How do you determine if you are inadmissible on other grounds? This is a complicated task, because the grounds of inadmissibility are extensive. Besides unlawful presence under §212(a)(9)(B), the other inadmissibility categories include :
- 212(a)(1): Health-related grounds
- 212(a)(2): Criminal-related grounds
- 212(a)(3): National security grounds
- 212(a)(4): Public charge
- 212(a)(5): Labor protection grounds
- 212(a)(6): Fraud or false claims of citizenship; smuggling
- 212(a)(7): Documentation requirements
- 212(a)(8): Grounds relating to military service in the United States
- 212(a)(9)(A) and (C): Prior removals, permanent bar
- 212(a)(10) Other miscellaneous grounds (including practicing polygamists, international child abductors)
In addition, each inadmissibility category comprises several subsections, so these 10 separate categories of inadmissibility include 54 ways that a person may be inadmissible, based on the conduct described in these subsections.
How an Immigration Attorney Can Help
The approval of your waiver is important because your family staying together depends on it. It is hard to remember everything and to know where you stand. An immigration attorney can use the legal tests to show the extreme hardship to the U.S. citizen spouse if you are living separate because of a denial, if the spouse has to live with you outside the United States and that your case deserves the discretionary benefit of the provisional waiver. All three legal tests must be proven for the government to grant the waiver