Provisional Waiver (I-601(A)) Will Now Include Family Members of U.S. Residents

Provisional Waiver Expansion Overview

On July 29, 2016, USCIS announced the Federal Register publication of its final rule expanding the class of individuals eligible for a provisional unlawful presence waiver. The final rule will take effect August 29, 2016. As we previously wrote, the rule was first proposed approximately one year ago, and allows any applicant statutorily eligible for the general waiver of unlawful presence inadmissibility ground (I-601) to apply.

The new rule means that going forward, parents or spouses of U.S. lawful permanent residents can act as “qualifying relatives” in proving eligibility for the waiver. To qualify for a provisional waiver, applicants must establish that their U.S. citizen or lawful permanent resident spouse or parent would face extreme hardship if the immigrant applicant is not allowed to remain with them in the United States. “Extreme hardship” is interpreted by USCIS to mean a hardship standard that is beyond the severe hardship one would normally face during familial separation, and encompasses medical, psychological, financial, emotional and other related hardships. The feasibility for the qualifying relative of relocating to the immigrant applicant’s home country is also of relevance.

I-601(A) Waiver Background

By way of background, the Provisional Waiver process applies to individuals who are ineligible to adjust their status in the U.S. Departing the U.S. would mean subjecting themselves to a 10-year unlawful presence ban. The Provisional Waiver allows such individuals the opportunity to apply for the waiver before departing the U.S. Thus the immigrant can remain in the U.S. with their family while awaiting the decision on the waiver. Prior to the Provisional Waiver program, the applicant had to depart the U.S., subject themselves to the 10-year bar, and wait abroad for 6-12 months while their waiver is being decided. Needless to say, the Provisional Waiver — and now its expansion to include applicants whose spouse or parents are U.S. Residents – has been a welcome relief for immigrants trying to follow the law and fix their immigration status.

Who Typically Applies for an I-601(A) Provisional Waiver?

Individuals statutorily unable to adjust their status in the U.S. despite a qualifying petition from an employer or family member are within the class of individuals eligible for to apply. Three groups of immigrants make up most applicants:

• Individuals who entered the U.S. to work aboard a ship of vessel (Crewmen);
• K-1 fiancees (and their K-2 dependents) who entered the U.S., but did not marry their U.S. citizen spouse and adjust their status through the marriage;
• Individuals who “EWI’d” (entered without inspection), and are not otherwise eligible to adjust status through an exception such as Section 245(i) or an administrative grant of parole.

Khurgel Immigration Law Firm welcomes this week’s announcement by the USCIS in promoting family unity by expanding eligibility for the I-601(A) Provisional Waiver. The new rule will decrease the amount of time families are separated while awaiting lengthy processing delays, and allow those who are in the U.S. lawfully to have their family members join them. The rule goes into effect August 29, 2016 and USCIS will post an updated Form I-601A on that date.

See also: Waivers of Inadmissibility, an Overview

See also: An article about the Upcoming Extreme Hardship Guidance

See also: Expanding the Provisional Waiver, a Proposal

See also: The Reason to Believe (“RTB”) standard in Provisional Waiver Adjudications

See also: Crewman Immigration to the U.S.