There’s an important waiver available to inadmissible immigrants, as of March 4, 2013. Its purpose is to promote family unity and reduce the uncertainty and risk that came with the old waiver application method. U.S. Citizenship and Immigration Services (USCIS) has created a form for this purpose, called an I-601A, available for free download on the I-601A page of the USCIS website.
Essentially, the waiver, called the "provisional" or "stateside" waiver, allows people immigrating as relatives of U.S. citizens and permanent residents, lottery winners, and immigrant visa applicants in other categories, to apply for a waiver of the three- and ten-year bars for unlawful presence before leaving the U.S.; instead of after leaving the U.S. to attend their consular interview.
The net result is that they avoid the risk of being trapped outside the U.S. if the waiver application is denied, as we’ll discuss further in this article.
The I-601A provisional waiver is meant to deal with one, and only one ground of inadmissibility found within U.S. immigration law. (“Inadmissibility” means a barrier to receiving a visa or green card). The ground in question says that an applicant who has, after the age of 18, accrued unlawful presence in the U.S. of 180 days or more, is barred from returning to the U.S. for three years; while applicants who have accrued unlawful presence of one year or more and then left the U.S. are barred from returning for ten years.
Green card applicants can, however, be found inadmissible for a variety of other reasons, such as commission of crimes, fraud, or immigration violations; health problems; likelihood of becoming public charges (needing government assistance); and so on.
The provisional waiver cannot be used to deal with any of these, and you cannot get one if you are inadmissible on some basis other than unlawful presence. You will instead need to seek a traditional waiver (on Form I-601) instead. See Who Can't Get Into The United States? for an overview of the various grounds of inadmissibility.
Before the provisional waiver option became available, the only procedural choice for visa applicants who had accrued too much unlawful presence in the U.S. was to await their interview at the U.S. consulate, leave the U.S., attend the interview and be found inadmissible, apply to USCIS for the waiver (using Form I-601), and then wait for an answer.
This process is known for taking many months, thus leading to long periods of family separation even in cases where the waiver was ultimately approved. And if the waiver was denied, the applicant would have to wait out the required three or ten years before returning to the U.S. on any form of visa or green card.
The newer, provisional waiver lets immigrating family members of U.S. citizens take advance measures, while still living stateside, to guard against the possibility of being trapped outside the United States for many years.
After the initial family-based visa petition or self-petition (on Form I-130 or I-360) has been approved by USCIS, the applicant will need to advice the National Visa Center (NVC) (at [email protected]) to hold off on further processing while he or she submits a provisional waiver application to USCIS.
Then, the applicant submits the provisional waiver application to USCIS on Form I-601A, with accompanying documents and fee ($630 plus $85 for biometric services if you're under 79 years old; 2019 figures). If that application is approved, the case moves forward, and the applicant can leave the country for the consular interview knowing that (if all else is in order) there’s a good chance of being approved for the green card.
If USCIS denies the provisional waiver application, the applicant can reevaluate his or her situation while still living with family in the United States. No appeal is available, but applicants are allowed to try again before the consular case has been closed. (If you haven’t already consulted an attorney, this would be an excellent time to do so.)
To make use of the I-601A waiver possibility, you must meet all of the following criteria:
The application for the waiver will not only need to include Form I-601A and the fee, but copies of documents proving all of the eligibility factors on the list above. For help preparing this application, consult an experienced immigration attorney.