Provisional Waiver (I-601A)

Provisional Waiver

One thing we strive to do (and have been pretty successful with) is to avoid surprising a potential client.  It is just awful when we get a call from a potential client who tells us that their last attorney filed their 601A but NEVER told them that they had to leave the country.  Or worse, another potential client called us to say that he was stuck abroad because his previous attorney did not disclose a “littering” charge.  This would be our personal hell, to have a client stuck abroad after a consular interview.

We never want to hear “I didn’t know that” or “you didn’t tell me that.”  And so far, we have never heard those words come from a client, thank God.  The reason that clients are never surprised by having to leave the US for the final step, is because we repeat this requirement over and over again: from the very first initial call or email, then during a virtual consultation, then at least one more time by email.  And this clear communication is something that we do in all aspects of our representation.

What Is Unlawful Presence and How Does the Provisional Waiver Help Me?

Once a foreign national enters the US without inspection, the “unlawful presence” clock begins.  Once that clock reaches 6 months, the foreign national cannot depart the US without triggering a 3-year ban from this country.  Once the clock reaches 12 months, the foreign national cannot depart the US without triggering a 10-year ban from this country. During this time, the foreign national must either wait for the 3- or 10-year bans to expire, or, if they want to return before the period lapses, can apply for a “601” waiver by proving hardship to a qualifying relative.  The ban is ONLY triggered if the foreign national departs the US.

In 2013, former President Barack Obama created the i601A “provisional waiver” in order to keep families together while the waiver application was pending. Prior to the creation of the provisional waiver, foreign nationals were required to depart the US (which triggered the 3-year or 10-year bans if they had 6 months or 1 year of unlawful presence, respectively), and then remain outside of the US until either, the waiver was adjudicated (which was often years) or the time bar lapses.  

With the provisional waiver, the foreign national can file the waiver with USCIS and remain in the US until the waiver is approved, after which s/he must depart the US only briefly to have the medical exam done, attend the consular interview, and receive the immigrant stamp in his/her passport.  This waiver process has helped countless people in this country!

When Do I Need a Provisional Waiver?

Very often, a US citizen will call us because s/he married a foreign national and are ready to file the paperwork for a green card.  Before we schedule a consultation,  our first question is “did your spouse enter the country legally, or illegally (without a visa).  In many of these cases, the spouse has entered the US illegally. Why do we ask this question up front, before scheduling a consultation?  Read more to find out…

With very few exceptions, if a foreign national has entered the US without a visa, or travel document, then s/he is deemed “inadmissible” and cannot “adjust status” in the US. This DOES NOT mean that they cannot get a green card; it only means that they cannot get the green card while in the US (through adjustment of status).  The reason that we ask this question at the very start is because the answer dictates whether the client will want to proceed. 

Example: John walked across the US-Mexico border in 2005.  He was never caught by CBP or ICE and was never placed into deportation or removal proceedings.  John can still receive a green card but cannot file his application in the US. This is because he did not enter the US by being inspected.  If he had been inspected by CBP by presenting a visa, or ESTA travel document, or was paroled into the US with a travel document, he would have been eligible to adjust status.

To be eligible for a provisional waiver (filed using Form I-601A), the foreign national must:

  • Be 17 years of age or older
  • Have entered the US illegally
  • Have a “qualifying relative” -be the spouse, child, son or daughter, or parent of a US citizen OR the spouse, son or daughter of a lawful permanent resident (LPR)
  • Prove “extreme” hardship to that qualifying relative; and
  • Not be “inadmissible”. There is a lot to unpack here. First, what is a “qualifying” relative”? Believe it or not, a “son” or “daughter” over 21 years old DOES NOT qualify.  The qualifying relative must be a US citizen or LPR parent or spouse ONLY.

Example: Maria walked across the US border through Texas in 2010.  She was never caught by CBP or ICE and was never placed into deportation or removal proceedings.  She married a US citizen and had one US citizen baby who is now 2 years old.  Her husband was originally from El Salvador before he naturalized.  He receives disability from his mental trauma and suffers from night terrors, has anxiety disorder, suffers from clinical depression.  Maria works illegally as a house cleaner and makes about $75,000 per year. She donates her money to St. Jude’s, attends church regularly, and volunteers her time participating in food drives.  She has never committed any crime or even received a citation.  Maria is eligible to apply for a 601A waiver by proving hardship to her husband, not her child (though the argument can be made that if Maria is deported, her husband must take care of their child which is additional hardship to him).

What Are the Steps for the 601A? 

  • We will go through your entire US immigration history as well as talk about any arrests, citations, convictions, before we prepare the i130 petition because if there is ANY mistake on this application, it can result in a denial of your immigrant visa. As we prepare your i130, we select the qualifying relative as the petitioner, or, sometimes we use a son or daughter, depending on the stronger case.  We submit the i130 to USCIS and wait for it to be approved.
  • Once the i130 is approved, USCIS sends the case to the National Visa Center (NVC). If a visa is immediately available, the NVC will email a case number and invoice number.  Login and pay the visa fees.
  • Prepare and submit the i601A package. We give our clients an extensive checklist of various types of evidence to prove “extreme” hardship.  Our packages often exceed 500 pages. It is not about quality, it is about quantity. So we focus on key documents that will persuade the officer. 
  • Once the i601A is approved, we continue the processing with the NVC by submitting the immigrant visa application and supporting documents. NVC processes all of it and emails us that the documents are “qualified” and will work with the Consulate to schedule an interview.
  • The NVC will email the interview date. Client departs the US 3 weeks early with enough time to schedule the medical exam, rest and prepare for the interview, attend the interview and wait to receive the passport with the immigrant visa stamp.
  • Client arrives back in the US and the green card and social security cards are mailed within 90 days of arrival.

Example: Stefan enters the US illegally in the 1990s.  He is arrested for Driving Under the Influence and is given Probation Before Judgement (PBJ) and has to put an interlock on his car, take AA classes, and has his license suspended.   Five years later, he marries a US citizen who does really well working as a nurse, earning a 6-figure salary.  Wanting to have children, his wife undergoes IVF, and although she gets pregnant 3 times, but she miscarries every time.  These losses send her into a deep depression. Some days she is too sad to even get out of bed, often she is unable to concentrate at work, and eventually she loses her job.  Stefan is the primary wage earner working as a general contractor and now is responsible for paying the whole mortgage as well as paying to support his wife’s elderly parents who are both US citizens. Stefan is eligible for the i601A waiver BUT a Consular Officer could deny Stefan’s immigrant visa because of his DUI conviction. As attorneys, we would be very careful about proceeding with this case.

It is important to note that you will have the i601A approval notice BEFORE you depart the US to attend your interview.  The time abroad should not be for several months or years.  Most of our clients have only been abroad for 3 weeks.

BUT, a Consular Officer has the right to deny your immigrant visa EVEN with an i601A approval notice.  AND if a Consular Officer does deny your immigrant visa, there is no right to an appeal. You will most likely be stuck abroad. So it’s very, very important that we help you through every step mentioned above.  We have heard countless stories, most often by cases filed by negligent or inexperienced immigration attorneys, of a foreign national being stuck abroad.

Given that the end result of a denial will be devastating to you and your family, please contact us to help you with this very important filing.  If you are stuck abroad, there is not much we can do to help, so let’s prevent a consular denial and work together to build a strong case from the start!