I-601 Provisional Waiver Application

In March of 2013, USCIS began accepting applications for Provisional Unlawful Presence Waivers, or I-601A waivers. The I-601A waiver is used for immediate family members of a US citizen to apply for a waiver of the three and ten-year bar for unlawful presence in the US before the immigrant leaves for their interview instead of after. The idea behind this is that the applicant can have some security in knowing that before they leave for an immigrant visa interview in another country, they have been granted or denied a waiver before travel rather then while they are out of the US.

To be eligible for a provisional unlawful presence waiver you must fulfill ALL of the following conditions:

  1. Be 17 years of age or older.
  2. Be an immediate relative of a U.S. citizen (not a preference category immigrant who has a visa available). An immediate relative is an individual who is the spouse, child (unmarried and under 21), or parent of a U.S. citizen.
  3. Have an approved
  4. Form I-130, Petition for Alien Relatives
  5. Have a pending immigrant visa case with DOS for the approved immediate relative petition and have paid the DOS immigrant visa processing fee (IV Fee).
  6. Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent (the qualifying relative).
  7. Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
  8. Not have been scheduled for an immigrant visa interview by DOS before January 3, 2013.

9. Meet all other requirements for the provisional unlawful presence waiver, as detailed in 8 CFR 212.7(e) and the Form I-160A and its instructions.

Proving extreme hardship is critical! It is important to point out that the extreme hardship must fall on the United States citizen spouse or parent, not the immigrant. A lot of evidence will be required to show extreme hardship. Financial records, affidavits, employment evidence, expense reports, medical documentation, birth/marriage/adoption certificates, and other records will be needed to document extreme hardship. Here are some factors that are considered by USCIS when determining if an extreme hardship will exist:

  1. Health - If the US citizen has an extreme health condition and needs treatment that is not available in the immigrant's native country. Additionally, if the trip itself could be detrimental to the US citizen's health, that may be considered as well.
  2. Financial Considerations - Things to consider here may be whether or not the US citizen can find employment in the immigrant's native country, if the US citizen will suffer extreme financial costs from the move, or if the US citizen will suffer great financial loses from sale of business or home.
  3. Education - If the US citizen will lose access to quality education, have their education disrupted, or will not have their educational program available in the immigrant's native country, these can all be factors in proving extreme hardship.
  4. Special Factors - These are things such as language barriers, cultural differences, religious and ethnic obstacles the US citizen might face in the immigrant's native country. Conditions in the country and persecution of particular groups or classes in the immigrant's native country may also be considered as well.

Cost: The USCIS filing fee is $670 ($585 for the waiver filing fee and $85 for biometrics processing).

Forms: I-601A Application for Provisional Unlawful Presence Waiver

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