As of this March, 2013, the Department of Homeland Security will allow those who arrived in the United States without inspection to submit application for an I-601A provisional waiver which will essentially excuse the applicant’s illegal presence in the United States. Once the I-601A waiver gains approval applicants will be able to attend appointments for green cards in their native country. The goal of the waiver plan is to sidestep the issue of separating immediate family members when waivers are submitted abroad. In some instances when family members were separated, months or even years passed while waivers were pending. An application for an I-601A provisional waiver will be obtained prior to leaving the United States, allowing the person to be interviewed and return to their family in the United States within days or weeks.

The new I-601A provisional waiver allows undocumented aliens to apply for an extreme hardship waiver in the U.S.; once that waiver is approved, the applicant may attend the immigrant visa interview in their home country. In the past the process required those applying for the waiver to leave the country and wait for months—or even years—living away from their family while the application is considered. The new I-601A form requires a wait of only a few days, or, at most, a couple weeks. The new process also takes away the risk that the applicant would not be allowed to return to the U.S. following their interview with the consulate in their native country.

The person applying must be at least seventeen years of age at the time of the application and must have an approved I-130 visa petition which designates them as an immediate relative of a U.S. citizen. Spouses, parents and children of the U.S. citizen are considered “immediate” relatives, however to qualify as a parent the child sponsor must be a minimum of 21 years old. For consideration as a child of the U.S. citizen, the person must be 21 years of age—except under certain specific situations, addressed within the Child Status Protection Act. The applicant must also be able to show extreme hardship to the qualifying relative.

The applicant must reside in the U.S. at the time of the application, and as of January 3, 2013 the applicant must not have been scheduled for an immigrant visa interview. Other than unlawful presence in the United States, the applicant cannot demonstrate any other grounds of inadmissibility such as fraud, or a criminal conviction. Those who are under a pending removal from the U.S. are not able to file under the I-601A waiver program. Exceptions apply to those who have been removed from the immigration court calendar. Should the applicant be granted an I-601A provisional waiver, any deportation cases must be terminated prior to departure for the immigrant visa interview.

Should a person have their I-601A provisional waiver denied, removal proceedings may be reinstated although such removal will not be considered a priority unless the denied applicant has a criminal background, has committed an act of fraud or is considered a threat to national security or public safety. The primary factor in whether your I-601A waiver will be granted lies in how well your extreme hardship is documented.  Submitting only a few documents or exhibits would likely result in a denial. Extreme hardship can be emotional, financial or medical—a combination of these gives the applicant a greater chance of success. Extreme hardship is any hardship beyond the normal when family members are separated.

The emotional and psychological impact of separation between a U.S. citizen relative and the applicant must be detailed as well as political, economic and social conditions present in the applicant’s native country. Any significant health conditions which can be tied to unavailable medical care in the applicant’s native country can be considered extreme hardship as well as the U.S. citizen’s age, length of residence in the U.S., skills, health and ability to raise children in the country of relocation. Thus far approximately one out of every three applications has been denied; there you should meet with one of our Sullo & Sullo attorney so that that can guide you through the process.

As with most immigration-related issues, it is important to seek experienced legal help when applying for an I-601A Provisional Waiver. One small mistake can lead to a denial and a potential removal from the United States. The immigration attorneys of Sullo & Sullo are fully aware of all necessary requirements of an I-601A Provisional Waiver and will explain fully all the steps as we handle your case from start to finish.