The U.S. immigration system is complex and creates many challenges for applicants. Many people face challenges when adjusting their status, even after receiving permission to pursue a green card. Some may find themselves barred from reentering the United States due to prior unlawful presence. Although consular processing offers an alternative, it presents its own set of difficulties. To help navigate these barriers, the provisional waiver often called the “stateside waiver” was introduced. This guide will explain the different steps involved in the provisional waiver, offering helpful information for anyone looking to navigate the immigration process in the United States.
Who Can Benefit from the Provisional Waiver?
Before going deeper into the details of the provisional waiver, it is useful to determine under what circumstances an applicant may apply for it. As with all previous sections, it will be beneficial to revisit the information presented within this section before moving on to the next section.
The provisional waiver procedure becomes something like the beacon of hope for immigration advocates, especially for those migrant residents who have entered the legal territory of the United States unlawfully, who have been living in the region for more than six months, and are ideally qualified to apply for a green card. But the amendment to such status within the U. S. on their behalf remains a mere mirage.
In the past, individuals in this predicament had only one procedural recourse: It does not necessarily mean the applicants have left the U. S. to attend the consular interview for an immigrant visa. Here, one may find unlawful presence that makes them inadmissible, forcing applicants to look for a waiver from USCIS. The waiver, a lengthy process spanning months or even years, was the only hope for applicants to be reunited with their families in the United States. If denied, they faced the harsh reality of separation, forced to wait in countries outside the U.S. for 3 or 10 years, away from their loved ones.
The proposed decision of the provisional waiver is a revolutionary change – the option for getting the answer to the waiver request before leaving the country.
When to File Your Provisional Stateside Waiver Application
For all applicants, the first essential measure in the immigration process entails presenting a visa petition on Form I-130 by a United States citizen or lawful permanent resident, also referred to as a sponsor or petitioner. In the articles on Form I-130 Petition for Alien Relative, there is information concerning the instructions for completing and submitting this application.
Note that the provisional waiver procedure also applies to those immediate relatives of USC applying for VAWA self-petition on Form I-360 Since such individuals can generally change status for a green card without having to travel abroad, the process is not necessary.
Make a note in Question 22 of Form I-130 if you have not filed the petition and the immigrant will apply for an immigrant visa outside the United States at a U.S. consulate Rather than applying for adjustment of status within the US The provision for the provisional waiver eliminates the need for adjustment of status. USCIS will transfer the approved I-130 to the National Visa Center (NVC), which will then send it to the consulate for further processing as outlined in Question 22. Lack of distinction between the two would imply that further steps are necessary, such as filing Form I-824, paying for the filing fee, actioning, and waiting for several months if you stated that the immigrant will apply for adjustment of status in the US.
Applying for a Provisional Waiver
To apply for a Provisional Waiver, you must first secure approval from USCIS on your Form I-130. Next, download and submit the USCIS Form I-601A, Application for Provisional Waiver, from the USCIS website at no cost. Important: you cannot file these applications together – you must submit them separately, one after the other.
Furthermore, the applicant must connect with the NVC after they have been informed that they have paid the immigrant visa processing fee. Following USCIS approval of Form I-130, the NVC becomes in charge of your case. You can reach out to the NVC through the following email; NVCi601a@state. gov.
This step also makes sure that the NVC arranges an immigrant visa interview for you only after they receive the status of your provisional waiver application that USCIS has reviewed. If you fail to notify the National Visa Center (NVC) of changes, they may schedule an interview at a U.S. embassy or consulate abroad before you are ready. Take action! Contact the National Visa Center (NVC) or the consulate where your interview is scheduled and request to reschedule your interview for a new date after USCIS has made a decision on your case. This proactive step will help you move forward with your application process.
The Department of State (DOS) typically schedules the immigrant visa interview within two to three months after USCIS approves the stateside waiver request if the applicant has properly completed all necessary visa forms and submitted the required documents.
The Cost of Applying for a Provisional Waiver
Currently, the fee for Form I-601A is $630 as of the beginning of 2021 combined with the biometrics fee of $85.You can pay by check or money order, or complete and submit the USCIS Form G-1450, Authorization for Credit Cards, to authorize payment.
They make you give fingerprints and go through a records check with an FBI database to see if you have criminal or immigration enforcement records. It may also prompt the release of negative information into the public domain; therefore, one should consider seeking the assistance of a lawyer if the circumstances are likely to require it. As good as it may sound, it is important to mention that DHS does not use this procedure to look for and deport illegal residents. The Obama administration notes that its current enforcement priorities target individuals with “ancestral chain” connections and other individuals who pose threats to national security and public safety.
Required Documentation for a Provisional Stateside Waiver
The USCIS Form I-601A is the main form that applicants must file to request a provisional waiver before traveling to the United States. It is easy for a person to get this by navigating to the Forms section of the USCIS website. Read the article titled “Filling Out Form I-601A to Request a Provisional Waiver” to find the answers to the questions posed in this form and understand how to answer them.
To complete the waiver process, the applicants must fill out the form and include the fee apart from providing documents showing that the applicant qualifies for the waiver and documents supporting the approval of the director or agent.
USCIS mandates the submission of the following documentation:
- The adoption documents from the USCIS approval notice to Form I-130, Petition for Alien Grounded on Family Relationship.
- If the applicant was in removal proceedings, the EOIR has the authority to effect an Administrative Closure order.
- Documentation of the current state of the citizenship status of the qualifying relative, where the petitioner is distinct from the one who filed the immigrant visa petition.
- Additional information indicating the relationship between the applicant and the qualifying relative if the person who filed the immigrant visa petition is a different person/organization than the petitioner.
- To demonstrate extreme hardship, applicants must provide additional documents and evidence showing that their qualifying relatives will face severe difficulties if the US visa is denied. This may include proof of financial dependence, emotional support, or other compelling circumstances that highlight the impact of separation on their loved ones.
- Receipt of the immigrant visa processing fee as a document explained and recommended by the DOS.
Most applicants rarely interview about the stateside waiver, a peculiar feature that characterizes them. USCIS does not engage in this practice since it will require transferring the entire application file to a domestic office from the NBC. However, where the applicant has not complied with the completion of the prior directions or where the applicant has failed the interview test then USCIS still maintains the prerogative to conduct an interview.
What if the application is incomplete?
This means that while USCIS does not always reject completed stateside waiver applications, it does not mean that such kind of application should not be complete. Instead, it provides Requests for Evidence ( RFEs) when basic aspects regarding extreme hardship, discretionary approval, or any other factors are missing. Requests for Evidence (RFEs) aim to streamline the decision-making process by gathering additional crucial information related to the application.
However, filing an ill-formed application as a tactic is not advisable. USCIS retains the authority to outright reject petitions lacking essential qualifications. To achieve the desired outcome, it is best to consult a lawyer who can help prepare a comprehensive and persuasive application.
If you fail to pay the correct amount, forget to sign the application, or omit crucial eligibility information, USCIS will reject your application, requiring you to resubmit it.
Exploring Alternatives After a Provisional Waiver Denial
While USCIS does not permit the appeal of a provisional waiver denial, individuals faced with this outcome have several options:
- Submit a New I-601A Application: If your case is still ongoing at the DOS, you may have to apply for a new I-601A as well as the waiver of the grounds of inadmissibility at USCIS. However, this course of action is only worthwhile in the event you could share fresh or supporting details to respond to the purpose of the denial. We highly recommend hiring an attorney to assist you.
- Proceed with Consular Interview: You can opt to complete your consular interview and then apply for an I-601 waiver following the usual process after the interview. This option gives the following disadvantage since a rejected waiver application may lead to an inability to attend the U. S. for three or ten years.
Instead, DHS often holds off on taking action, providing a measure of relief to those whose applications are unsuccessful. However, exceptions may arise if the person has a criminal history, engages in fraud, or poses a national security or public safety threat.
In conclusion, securing a provisional waiver for individuals facing the three- or ten-year time bar due to past unlawful presence is a crucial step in the immigration process. By adhering to the procedural guidelines, providing comprehensive documentation, and seeking legal counsel when necessary, applicants can significantly enhance their chances of a successful waiver application. The provisional waiver offers a ray of hope for those eager to reunite with their families in the U.S., and understanding the process is the first step toward achieving this goal.
Can I apply for a provisional unlawful presence waiver if I am in removal proceedings?
You can apply for a provisional unlawful presence waiver (Form I-601A) while in removal proceedings, but only under specific conditions. Here’s a detailed breakdown of the eligibility criteria and process based on the search results:
Eligibility to Apply for a Provisional Waiver While in Removal Proceedings
- Administratively Closed Proceedings: You may apply for a provisional unlawful presence waiver if your removal proceedings have been administratively closed. This means that the proceedings are not currently active and have not been placed back on the immigration court’s calendar.
- No Pending Proceedings: If your removal proceedings are still active or have been reopened, you are not eligible to file for the provisional waiver.
- Other Requirements: In addition to being in administratively closed proceedings, you must also meet all other eligibility requirements for the provisional waiver:
- You must be physically present in the U.S.
- You must be at least 17 years old at the time of filing.
- You must be the beneficiary of an approved immigrant visa petition (such as being an immediate relative of a U.S. citizen).
- You must have an immigrant visa case pending with the U.S. Department of State and have already paid the immigrant visa processing fee.
- Final Orders of Removal: If you have a final order of removal, exclusion, or deportation, you can only apply for the provisional waiver if you have first applied for and received approval for Form I-212 (Application for Permission to Reapply for Admission into the United States After Deportation or Removal).
Application Process
- Filing Form I-601A: If you meet the eligibility criteria, you can file Form I-601A with USCIS. It is crucial to include a copy of the immigration judge’s administrative closure order along with your application.
- Approval and Next Steps: If your provisional waiver is approved, it will only take effect after you depart the U.S. and attend your immigrant visa interview at a U.S. Embassy or Consulate abroad.
How Law and Visas Can Help?
At Law and Visas, our team of expert immigration consultants is here to make your travel to the United States straightforward and successful. Whether you’re applying for a Family-Sponsored Visa, or Student Visas, we handle every step from preparing your application to gathering the required documents.
Our immigration Consultants and Lawyers ensure that your application meets the highest standards, with no details missed. We’ll also keep you informed throughout the process, coordinating with the immigration office or embassy on your behalf.
Law and Visas has a strong record of helping clients secure the visas/permits they need to do the United States. Call us today at +234 812 5505 986 to learn how we can assist you.
