Law Offices of Alicia R. Kinsman
CT Immigration & Naturalization Attorney

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Provisional Waivers--how do they work?

“I am a United States citizen but my spouse entered the country illegally. Can my spouse get a green card?”

An undocumented immigrant, even the spouse of a U.S. citizen, who can not prove lawful entry, is ineligible for a marriage-based green card, staying here in the United States. His or her only option would be to “consular process”— interview for the green card in an embassy or consulate outside of the United States. However, consular processing is NOT advisable for any immigrant who has 6 months or more of unlawful (undocumented and/or visa overstay) presence in the United States, because the very act of leaving the United States for consular processing will trigger a bar to re-entry, preventing the immigrant from returning to the United States for 3 years, 10 years, or more!

Consular Processing Without a Provisional Waiver

There exists a process to request that the wait time be waived. For many, in order to request that the bar to re-entry waived, the immigrant has to leave the United States and THEN apply for a waiver while outside the United States, having already triggered the bar, and then wait for the application to be processed. Even if the waiver was approved, it was after several months of separation from their U.S. family. And if the waiver was denied, it was too late to avoid the bar to re-entry. The family member is stuck.

The Provisional Unlawful Presence Waiver

Some individuals will be able to avoid this risky process by requesting that the re-entry bar be waived, BEFORE departing the United States. The I-601A, Provisional Unlawful Presence Waiver allows some individuals who have an approved petition from their relative, to receive a waiver of inadmissibility for unlawful presence before they leave for consular processing. This means that the immigrant relative can remain in the United States during the several months it takes USCIS to make a decision on the provisional waiver. Once the waiver is approved, the relative can then make the decision to depart the United States for consular processing.

Can I Apply For The Provisional Waiver?

Here are the basic requirements for a I-601A provisional unlawful presence waiver. Satisfying these requirements alone, however, is not enough!:

  1. You must be physically present in the United States

  2. You must be at least 17 years old at the time of filing

  3. Have an approved immigrant visa petition filed by your relative

  4. Have an immigrant visa case pending with the Department of State and have paid your immigrant visa processing fee

  5. You must only be inadmissible to the United States due to unlawful presence and for no other reason

  6. You must demonstrate hardship to a spouse or parent who is a US citizen or a Lawful Permanent Resident (green card holder).

Do I Need An Attorney To File The Waiver?

No, but hiring an experienced immigration attorney can avoid unnecessary expenses, mistakes and delays and bring you peace-of-mind when navigating this complex and stressful process. To learn whether you or your relative qualifies for an I-601A unlawful presence waiver call our office to set up your initial consultation! 203 701 6043

Disclaimer: The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law at the time it is read. No information contained in this post should be construed as legal advice, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a licensed lawyer.