New York Lawyer's Legal Updates

FAQ New I 601A Provisional Waiver

Author: Alena Shautsova

On July 29, 2016 USCIS Announced changes to go into effect on August 29th 2016 regarding much needed changes to the I-601A Provisional Waiver. For a quick synopsis the waiver initially was meant to overcome issues of inadmissibility one might face if they did not enter the country legally. Simply put, when a person is eligible for a Green Card through a US Citizen family member but did not enter legally the law requires that person leaves the country and receives a visa overseas, rather than adjusts status in the United States. The problem with this portion of the law is that by leaving the country, the individual who entered the country illegally, triggers a 3-10 year on reentering the country. The provisional waiver allowed to wait for the waiver results in the United States. If granted, the waiver “waivers” the unlawful presence bar. Previously, the restrictions to eligibility of the waiver allowed for very few individuals to truly qualify for an I-601A Provisional waiver. Recently those restrictions were lifted and details of the expansion can be found in my previous article on the subject “New Changes To I-601A Provisional Waiver.”

The changes have spurred an abundance of exuberant questions. I have compiled a list of the most frequently asked questions to help people understand the waiver better:

FAQ – I-601A Waiver part one

Q. My Brother/Sister is a resident and I am illegal, can I apply for the waiver?

A. Unfortunately, a sibling’s relationship is not enough to demonstrate hardships. Only those who have a U.S. citizen or permanent resident spouse or a parent or a U.S. citizen child may qualify. Note: the hardship must be shown to a U.S. citizen spouse or parent. For example, you have a U.S. citizen brother who sponsored your mother and now she is a permanent resident. If you have a current immigrant visa petition, and can demonstrate hardships to your mother, you may qualify for a waiver.

Q. If the waiver is approved and the beneficiary leaves the country, does that guarantee that he/she will be allowed to return to the US?

A. The waiver does not waive all possible grounds of inadmissibility, just the unlawful presence one. It means that each case has to be carefully evaluated by an attorney prior to submission with USCIS.

Q. My Child has been in the US with a pending petition for the last 10 years and the petition has become current, during this time my child got married. Can my child apply for the waiver if their spouse is not a US Citizen through my petition?

A. Probably yes. It depends on your status. If you are a US citizen and the petition you filed for your child was properly filed so that it is valid, the child may qualify for a waiver, and now, the new provisional waiver allows dependents to benefit from it as well.

Q. My Parent petitioned for me years ago and now my petition is current. I am currently on a Student Visa/ any other legal status. Can I apply for the waiver?

A. If you have maintained legal status the entire time you spent in the US you will not need a waiver, simply file for adjustment of status. If you need help we will be glad to help you.

Q. I have a Child under 21 who is a US Citizen, will this waiver help me?

A. The waiver “works” only when you have an approved qualifying immigrant visa petition. In the case with a child, the child, first must turn 21 in order to sponsor you. Then, he/she files I 130 petition for you, once that is approved you need to pay immigrant visa fees and an affidavit of support fee and then you may apply for a waiver. However, you still need to have a spouse or a parent in a citizenship or permanent resident status to qualify.

26 August 2016
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