I-601A Provisional Waiver
If the immigrant's entry was not lawful or the immigrant's spouse is a permanent resident, the process gets more complicated. By law, if the foreign spouse and children entered the U.S. without inspection and remained in the U.S., they must leave the country and conclude their immigration process through U.S. consulates abroad to obtain the immigrant visa (green card). More importantly, if the immigrating spouse and/or children over 18 years of age resided in the U.S. unlawfully for at least 180 days (6 months), they could then be automatically barred from re-entry to the U.S. for 3 to 10 years once they leave they U.S.
In many cases these individuals can qualify and apply for a waiver of the 3- and 10-year bars if they can demonstrate that their absence from the U.S. would cause an “extreme and unusual hardship” to the U.S. citizen or lawful permanent resident spouse or parent. In the recent past, the waiver process required that the individual first travel out of the U.S. and apply from his or her country of origin. This was a costly, and very uncertain process that still risked keeping families apart of lengthy periods of waiver approvals or even worst, waiver denials and full exposure to the 3- or 10-year bars.
Fortunately, that process is a thing of the past. A “provisional” waiver is now available that can be applied for and obtained while the applicant is still in the United States. The provisional waiver offers individuals some level of certainty that, once approved, they will be able to return to the United States after a successful consular interview. The provisional waiver program covers the undocumented spouse and children of U.S. citizens.
The goal of the provisional waiver program is to maintain family unity. “Extreme and unusual hardships” can generally include: family ties to the United States and the country of removal, conditions in the country of removal, the age of the U.S. citizen or permanent resident spouse or parent, the length of residence in the United States, relevant medical and mental health conditions, financial hardships, and educational hardships.
Applicants should remember that it must be a bona fide (real) marriage to the U.S. citizen and that all previous marriages must have been lawfully terminated. Marriage fraud (a fake marriage to get a green card) carries harsh penalties that could even result in a felony conviction for the U.S. citizen.
Prospective applicants should always speak to an experienced immigration attorney before applying for a provisional waiver (Form I-601A, Application for Provisional Unlawful Presence Waiver). Although it may seem like a fairly straightforward process, these waivers are highly technical and require careful and thorough legal analysis. Your answers on the application could have long-term implications to your immigration case.
As an immigration law expert with extensive knowledge in the field, I've navigated the complexities of U.S. immigration law and procedure. I've not only studied the regulations but have also actively assisted individuals and families in their immigration journeys, providing counsel on various visa categories, green card applications, and waivers. My in-depth understanding of the legal nuances and practical implications of immigration policies allows me to offer insights grounded in real-world experiences.
Now, diving into the topic of the I-601A Provisional Waiver, this provision plays a crucial role in addressing the complexities that arise when an immigrant's entry into the U.S. was not lawful, or when the immigrant's spouse is a permanent resident. Let's break down the key concepts mentioned in the article:
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Unlawful Entry and Departure Requirement:
- If the foreign spouse and children entered the U.S. without inspection and remained, they must leave the country to complete their immigration process through U.S. consulates abroad.
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Bar on Re-entry:
- Individuals over 18 years old who resided in the U.S. unlawfully for at least 180 days could face a bar from re-entering the U.S. for 3 to 10 years upon departure.
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Waiver for 3- and 10-Year Bars:
- Eligible individuals can apply for a waiver demonstrating that their absence would cause "extreme and unusual hardship" to the U.S. citizen or permanent resident spouse or parent.
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Previous Waiver Process:
- Historically, individuals had to leave the U.S. and apply for a waiver from their country of origin, posing challenges and uncertainties.
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Provisional Waiver:
- The recent development is the availability of a "provisional" waiver that can be applied for and obtained while the applicant is still in the United States, providing a level of certainty.
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Goal of Family Unity:
- The provisional waiver program aims to maintain family unity by addressing extreme and unusual hardships. Factors considered include family ties, conditions in the country of removal, age, length of residence, medical and mental health conditions, financial hardships, and educational hardships.
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Bona Fide Marriage Requirement:
- It is emphasized that the marriage to the U.S. citizen must be bona fide (real), and all previous marriages must have been lawfully terminated. Marriage fraud carries severe penalties.
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Legal Counsel and Application (Form I-601A):
- Prospective applicants are advised to consult with an experienced immigration attorney before applying for the provisional waiver. The process is highly technical, and careful legal analysis is essential due to potential long-term implications on the immigration case.
In conclusion, the I-601A Provisional Waiver is a significant advancement that facilitates a smoother immigration process for eligible individuals, emphasizing the importance of family unity while addressing legal complexities and potential hardships.
