New York Lawyer's Legal Updates

Who Can Benefit From Provisional Waiver

Author: Immigration Attorney Alena Shautsova

On March 4, 2013 new immigration rules regarding the provisional waiver (I-601A) will come into effect (see more here). It is important to understand who may benefit from the new process of considering waivers of unlawful presence.

First, the basic eligibility criteria for applying for the provisional waiver FORM I-601A are as follows:

A person who is in the United States has to:

  • Be a beneficiary of an approved immigrant petition (form I-130);
  • Be an immediate relative of a U.S. citizen (spouse, child, or parent);
  • Be inadmissible only on account of unlawful presence (entrance without inspection);
  • Be able to demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent.

In addition, an applicant should not already have a scheduled interview at a U.S. consulate abroad.

Another important point: the provisional waiver is only available if the exclusive issue in a case is unlawful presence. Applicants who have criminal issues or other immigration violations cannot use the provisional waiver procedure.

So, here is the list of common situations in which a person will not benefit from the waiver and/or does not require one:

  • A person (non- citizen) who was in the United States now is outside the United States;
  • A person is outside the United States, has never been in the United States and is marrying a US citizen ( in this case scenario a non-citizen does not need a waiver and should just apply for an immigrant or fiancé visa);
  • A person has multiple EWIs;
  • A person has multiple criminal convictions that require a separate waiver (if it’s available);
  • A person used someone else’s documents to enter the United States and has been inspected and admitted/paroled (in this case scenario a person requires an 212 (i) waiver fillable on the same I-601 form).

In addition, the I-601A is a provisional waiver, meaning that in case the service discovers other violations of Immigration laws after the waiver has been approved, it may revoke it.

For more information about the provisional waiver and its applicability please contact the Author at

01 February 2013
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