The Updated and Improved Provisional Waiver and recent processing times

Posted on by Ruby Powers in I-601 Waivers, I-601A Waivers, I-601A waivers Leave a comment

By Provisional Waiver Immigration Attorney Ruby L. Powers
November 15, 2017

What is an I-601A waiver (Provisional Waiver)?

The I-601A, Provisional Unlawful Presence Waiver, is a waiver that was introduced in 2013 under the Obama Administration. This waiver allows certain individuals, who entered the United States unlawfully, to be able to pursue residency while maintaining family unity, granted they meet the criteria of extreme hardship and have a qualifying relative. While this program still requires that individual to leave temporarily abroad for their consular interview and immigrant visa, as opposed to the waivers that preceded, the time a family spends apart is significantly reduced and, in many cases, is the only available option for legal permanent residency. This program has proven to be successful, and while the concept of leaving the United States may be frightening, it not to be feared if you have an experienced attorney by your side.

At the Powers Law Group P.C., we pride ourselves in successfully guiding our clients through the consular processing and I-601A waivers process. In recent months, we have seen a reduction in the adjudication period for I-601A waivers – from 7 months to 4 months. On August 29, 2016, an expansion of eligibility for such waivers began to be implemented to applicants including allowing Legal Permanent Residents to be eligible as Qualifying Relatives and allowing other visa categories, not just immediate relatives, to participate, among some other provisions.  Furthermore, in December 2016, a clarification of the extreme hardship standard was made which makes the process easier and clearer for adjudicators, clients and attorneys to meet and/or understand.

What does an I-601A waiver require?

In short, the expanded I-601A waiver requires that you have a Legal Permanent Resident (LPR) or United States Citizen (USC) parent or spouse – whom is considered your qualifying relative- that can show extreme hardship whether it be financially, emotionally, medically, and/or mentally, as a direct result from your absence (separation) OR extreme hardship in the event of the qualifying relative’s relocation to your country. Children (whether it be adult or minor) do not qualify to be qualifying relatives; with that said, to meet the extreme hardship standard, affidavits from you and your qualifying relative are suggested along with supporting documentation of the facts and events stated on your affidavits. This type of waiver is not appealable; however, could be re-filed in the event of a denial. It is important you schedule a consultation with an immigration attorney with experience in waivers to determine whether you or your loved one qualifies for this type of waiver.

What is the time expectancy of an I-601A waiver?

Overall, the entire I-601A provisional waiver process, in the case of an immediate relative spouse petition, for example, from the initial consult to the U.S. Consulate interview, is approximately 18 -24 months. Details for this timeline are as follows:

  • Step 1: I-130, Petition for Alien Relative Submission

 

      • (8-10 months) Adjudication period. Receipt notices are received within 2-3 weeks of submission.

 

  • Step 2: National Visa Center (NVC) Part I

 

      • (1 month) Following approval of I-130 by USCIS; USCIS sends the file to NVC for processing and issuing fee bills associated with Immigrant Visa Application and Affidavit of Support.  

 

  • Step 3: I-601A, Provisional Unlawful Waiver Submission and Adjudication

 

      • (4 months) Adjudication period. Receipt notices are received within 2-3 weeks of submission.

 

  • Step 4: NVC Part II

 

      • (2-3 months depending on if a request for evidence)
      • Submission of I-864 and DS-260 among other documents

 

  • Step 5: Visa appointment

 

    • (1-3 months) for notice of interview depending on the consular post.
    • Medical Exam

 

Please note that this timeline only takes into consideration recently-noted trends in processing times by the government, and not any additional time that preparation of documentation by the client and attorney may take.

The Powers Law Group has helped thousands of families stay united and take the leap to legal permanent residency and a more secure future.  It is important to your journey to do your research in hiring the attorney and firm to assist you through this process.  Be aware of ‘notario’ fraud and people or groups offering to “fill out forms” for you as immigration law is more complex than this and often people become victims of unauthorized practice of law. Learning about a firm’s experience with waivers and knowledge of various countries, including your own, are essential.  As they say, a journey of a thousand miles starts with the first step.


Provisional Unlawful Presence Waiver announcement – January 3, 2013

Posted on by Ruby Powers in Consular Processing, I-601 Waivers, Immigration Trends, Legislative Reform, State and Local Immigration Rules Leave a comment

After a year of waiting all of 2012, we have it folks! The provisional unlawful presence waiver is being published today, January 3, 2013 and will become effective on March 4, 2013 (60 days later).

For more info

Secretary Napolitano Announces Final Rule to Support Family Unity During Waiver Process

Release Date:
January 2, 2013

For Immediate Release
DHS Press Office
Contact: 202-282-8010

WASHINGTON—Secretary of Homeland Security Janet Napolitano today announced the posting of a final rule in the Federal Register that reduces the time U.S. citizens are separated from their immediate relatives (spouse, children and parents), who are in the process of obtaining visas to become lawful permanent residents of the United States under certain circumstances. The final rule establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver before they depart the United States to attend immigrant visa interviews in their countries of origin. The process will be effective on March 4, 2013 and more information about the filing process will be made available in the coming weeks at http://www.uscis.gov/.

“This final rule facilitates the legal immigration process and reduces the amount of time that U.S. citizens are separated from their immediate relatives who are in the process of obtaining an immigrant visa,” said Secretary Napolitano.

U.S. Citizenship and Immigration Services (USCIS) received more than 4,000 comments in response to the April 2, 2012 proposed rule and considered all of them in preparing the final rule.

“The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this rule achieves,” USCIS Director Mayorkas said. “The change will have a significant impact on American families by greatly reducing the time family members are separated from those they rely upon.”

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents must leave the U.S. and obtain an immigrant visa abroad. Individuals who have accrued more than six months of unlawful presence while in the United States must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the United States after departing to obtain an immigrant visa. Under the existing waiver process, which remains available to those who do not qualify for the new process, immediate relatives cannot file a waiver application until after they have appeared for an immigrant visa interview abroad and the Department of State has determined that they are inadmissible. 

In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent. USCIS will publish a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver, for individuals to use when applying for a provisional unlawful presence waiver under the new process.

Under the new provisional waiver process, immediate relatives must still depart the United States for the consular immigrant visa process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad. Individuals who file the Form I-601A must notify the Department of State’s National Visa Center that they are or will be seeking a provisional waiver from USCIS. The new process will reduce the amount of time U.S. citizen are separated from their qualifying immediate relatives. Details on the process changes are available at http://www.regulations.gov/.

For more information, visit www.uscis.gov.


Twelve Things to consider about the Provisional Waiver – I-601A waiver

Posted on by Ruby Powers in Consular Processing, I-601 Waivers, Immigration Trends, Legislative Reform, Processing of Applications and Petitions Leave a comment

Twelve Things to consider about the Provisional Waiver – I-601A waiver 

Law Office of Ruby L. Powers – Immigration Law Firm focused on Waivers

  1. It is not yet available (as of April 2012), but everything points to it being available later in the year.
  2. You must already have an approved I-130 or I-360. It can’t be pending.
  3. If you are in removal proceedings, DHS is still considering how to address provisional waiver requests from individuals in removal proceedings.
  4. The standard of hardship for I-601 waivers will be the same for I-601A waivers.
  5. It only waives the unlawful presence bar that would be triggered upon leaving the US, thus no guarantee of readmission.
  6. Once approved, you still have to leave the US to attend the visa appointment.
  7. It does not provide lawful status while pending.
  8. It does not stop the accrual of unlawful presence (used in calculation of the bar).
  9. It provides no interim benefits like an EAD (employment authorization) or advance parole.
  10. Unlike the I-601 waiver, the I-601A is only for spouses and children of US citizens.
  11. Unlike the I-601 waiver which covers other ground of inadmissibility, the I-601A will only cover unlawful presence inadmissibility.
  12. We are all excited about this making the wait for family members a lot less!

I-601 Waiver Immigration Attorney Ruby L. Powers – April 12, 2012


Provisional Unlawful Presence Waivers – March 30, 2012 – I-601A waiver

Posted on by Ruby Powers in Consular Processing, I-601 Waivers, Immigration Trends, Legislative Reform, Processing of Applications and Petitions Leave a comment

Reminder: This proposed process is not in effect. To learn more, read this alert.

What USCIS Proposes

On March 30, 2012, U.S. Citizenship and Immigration Services (USCIS) posted a Notice of Proposed Rulemaking (NPRM) in the Federal Register requesting public comment on its plan to create an alternative process for certain immediate relatives of U.S. citizens to apply for and receive a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States, if they can demonstrate that being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative extreme hardship. The goal of the proposed process change is to reduce the time that U.S. citizens are separated from their immediate relatives while those family members go through the consular process overseas to obtain an immigrant visa.

Why We Propose It

Currently, immediate relatives of U.S. citizens who have accrued a certain period of unlawful presence in the United States are barred from returning to the United States for as long as 3 or 10 years if they leave the country. Immediate relatives can obtain a waiver of the unlawful presence bar if they show that a U.S. citizen spouse or parent will experience extreme hardship if they are required to remain outside the United States. The immediate relative also would have to show that they warrant a favorable exercise of discretion.   But in order to obtain the waiver, these individuals must depart the United States and wait abroad while the waiver is processed.

Under the current process, therefore, U.S. citizens suffer unnecessarily long periods of separation while family members go through consular processing overseas to obtain an immigrant visa. The proposed process change lessens the length of separation by reducing inefficiencies in the current immigrant visa process. USCIS believes that this proposed change will streamline the immigrant visa process for immediate relatives whose only ground of inadmissibility is unlawful presence. USCIS plans to adjudicate the provisional waiver application in the United States before the immediate relative departs for his or her immigrant visa interview, which will reduce the length of time immediate relatives must spend abroad for consular processing.

What the Proposed Process Would Do

Under the proposed process, immediate relatives of U.S. citizens who would need a waiver of unlawful presence in order to obtain an immigrant visa could file a new Form I-601A, Application for Provisional Unlawful Presence Waiver, before leaving the United States to obtain an immigrant visa at a U.S. Embassy or Consulate abroad. All individuals eligible for this streamlined process are still required to depart the United States and must meet all legal requirements for issuance of an immigrant visa and admission to the United States.

An individual may seek a provisional unlawful presence waiver if he or she:

  • Is physically present in the United States;
  • Is at least 17 years of age;
  • Is the beneficiary of an approved immigrant visa petition (I-130) classifying him or her as an immediate relative of a U.S. citizen;
  • Is actively pursuing the immigrant visa process and has already paid the Department of State immigrant visa processing fee;
  • Is not subject to any other grounds of inadmissibility other than unlawful presence; and
  • Can demonstrate that the refusal of admission would result in extreme hardship to a U.S. citizen spouse or parent.

An immediate relative would not be eligible for the proposed process if he or she:

  • Has an application already pending with USCIS for adjustment of status to lawful permanent resident;
  • Is subject to a final order of removal or reinstatement of a prior removal order;
  • May be found inadmissible at the time of the consular interview for reasons other than unlawful presence; or
  • Has already been scheduled for an immigrant visa interview at a U.S. Embassy or Consulate abroad.

Allowing immediate relatives of U.S. citizens to receive provisional waivers in the United States before departure for their immigrant visa interview at a U.S. Embassy or Consulate means that:

  • Immigrant visa processing times will improve because of greater capacity in the United States and fewer case transfers between USCIS and the Department of State;
  • Immigrant visas will be issued without unnecessary delay (if the individual is otherwise eligible); and
  • The period of separation and hardship many U.S. citizens would face due to prolonged separation from their family members will be minimized.

Next Steps

This new process will be implemented only after USCIS publishes a final rule in the Federal Register with an effective date. USCIS will consider all comments received as part of the proposed rulemaking process before publishing the final rule. The current waiver process remains in place and will continue to remain for those who may not be eligible for a provisional waiver.

DO NOT file an application or request a provisional waiver at this time. Any applications filed with USCIS based on this NPRM will be rejected and the application package returned to the applicant, including any fees, until the final rule is issued and the change becomes effective.

For additional information, please see our I-601A Questions and Answers document, linked at the upper-right side of this page.

This page can be found at: http://www.uscis.gov/provisionalwaiver

 


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