I-601A, Provisional Unlawful Presence Waiver: Advantages and Limitations
Most undocumented immigrants who entered the U.S. without inspection must leave to apply for an immigrant visa at their U.S. Consulate overseas. Unless they fall under a limited exception, they cannot file a Form I-485 to adjust to permanent resident status while they are in the U.S.
If the person accumulated more than 180 days of unlawful presence prior to departing the U.S., it is much harder to obtain the visa overseas as that person will be facing a 3-year bar to reentry. To get the visa, the person first needs to receive a waiver of inadmissibility for the unlawful presence.
The Provisional Unlawful Presence Waiver may be obtained before the immigrant visa applicant leaves the U.S. It reduces the uncertainty and risk that come with leaving the U.S. and not knowing whether or not the application for Provisional Unlawful Presence Waiver was granted. To get this waiver, applicants must file the Form I-601A with USCIS while they are still in the U.S.
Why is the Unlawful Presence Waiver Required?
In 1996, Congress passed a law that bars foreign nationals from lawfully re-entering the U.S. for 3 or 10 years, if they accumulated a certain period of unlawful presence in the U.S. before they left the country.
Persons are unlawfully present if they:
(1) entered the U.S. without inspection
(2) entered the U.S with inspection but failed to leave on time
Persons who accumulate more than 180 days but less than 1 year of unlawful presence after the age of 18 and after April 1, 1997, and then leave the U.S., are barred from re-entering the U.S. for 3 years.
When the 3/10 year bar applies, the person must obtain an unlawful presence waiver to lawfully re-enter the U.S. before the bar expires.
Advantages of the Provisional Unlawful Presence Waiver
Many undocumented immigrants prefer not to take the risk of departing the U.S. to legalize their status, especially when facing the unceraintify of whether the Provisional Unlawful Presence Waiver will be granted.
The provisional waiver provides two main advantages:
1. Higher likelihood that immigrant visa will be granted by the U.S. Consulate
Approval of the provisional waiver application increases the chances that the U.S. Consulate abroad will issue the immigrant visa at or after the interview.
Applicants who do not qualify for the provisional waiver must file the regular Form I-601, (as opposed to I-601A) after they attend the visa interview. In contrast, Form I-601A applicants already have the provisional waiver at the time of the interview. Unless there are other grounds of inadmissibility, the U.S. Consulate typically grants the visa when USCIS has provisionally waived the unlawful presence.
2. Shorter wait time abroad and separation from family in the U.S.
Regular Form I-601 applicants must wait abroad, after attending their visa interview, while USCIS reviews their waiver application. Because USCIS on average takes at least six months to process the waiver, applicants must plan to wait outside the U.S. for this time period or longer.
If USCIS grants the waiver, the U.S. Consulate could take at least another month to finish processing the case.
The provisional waiver process allows applicants to obtain the waiver ahead of time, before they depart the U.S. to attend the visa interview. You get to stay in the U.S. with your family while USCIS processes the waiver request, which reduces the time you are separated from your family. After the waiver is approved, you then depart the U.S. to attend the interview at the U.S. Consulate. Instead of waiting abroad for months like regular Form I-601 applicants, you normally get the visa within days to resume your life in the U.S.
Limitations of the Provisional Unlawful Presence Waiver
1. Applicant must be physically present in the U.S.
You may apply for the provisional waiver only if you are already in the U.S. and have not departed.
If you are living overseas or if you already departed the U.S., you must file the regular Form I-601 with USCIS after you attend the immigrant visa interview.
2. Applicant cannot be inadmissible to the U.S. on other grounds
You may apply for the provisional waiver if you are inadmissible only on account of your unlawful presence in the U.S. If you are subject to other grounds of inadmissibility, such as illegal re-entries, false claims to U.S. citizenship, immigration fraud, or criminal convictions, you must file the Form I-601 instead.
5. Applicant must not be in removal proceedings or subject to a removal order
If you are in removal proceedings, you may not apply for the provisional waiver unless the Immigration Judge administratively closes your removal case and does not place it back on the calendar to continue removal proceedings as of the date of filing the Form I-601A.
You do not qualify for the provisional waiver if you (a) have been ordered removed, excluded, or deported from the U.S. or (b) are subject to reinstatement of a prior order of removal.
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Consult an experienced immigration attorney to help you determine whether you must apply for an immigrant visa instead of file for adjustment of status; whether you are inadmissible due to unlawful presence or other grounds; and whether you qualify for the provisional waiver (or the regular waiver).
