Currently, immigrant and K visa applicants submit their I-601 waivers at or shortly after their consular interview abroad. After submitting their waivers, applicants have to remain abroad, usually while being separated from their families in the United States, until a decision has been made and their waiver has been granted. The proposed provisional unlawful presence I-601A waiver would shorten the time that waiver applicants spend apart from their families. Certain applicants would be able to apply for the waiver from within the United States and travel to their consulates abroad once their waiver has been approved so the consular officer can issue an immigrant visa immediately.
If approved, this waiver cures an applicant's unlawful presence in the United States. An applicant accrues unlawful presence when he enters with inspection but overstays the expiration of his I-94, enters without being inspected or paroled, or when the United States Citizenship and Immigration Services or an Immigration Judge has made a finding that he is unlawfully present.
An applicant is eligible to apply for this provisional waiver if:
- he is in the United States;
- his departure would trigger the unlawful presence bars (three or ten year bar);
- he is starting or continuing his National Visa Center processing but does NOT have a consular interview scheduled yet; and
- he has a qualifying relative, which in this case means U.S. citizen spouse or parent (Lawful Permanent Resident relatives are not qualifying relatives, nor are children, whether they are U.S. citizens or not.)
Only one provisional waiver application can be filed and there are no appeals or motions to reconsider. Before filing, the applicant must make sure that he is not subject to another ground of inadmissibility because this proposed waiver only cures unlawful presence. If the applicant is subject to any other ground of inadmissibility, he must file a regular I-601 waiver at or after his consular interview abroad. If a client is currently in removal proceedings and seems to qualify for this proposed waiver, it is important to note that he will only be eligible to apply if he is granted pre-conclusion voluntary departure, not if he is ordered removed or has his case administratively closed. For clients with administrative closures, they will most likely have to request that their case be re-calendared and subsequently terminated so that they can proceed with the waiver process.
This new waiver will benefit many people in the United States who have an illegal entry which makes them ineligible for adjustment of status. Once this waiver is implemented, the backlog for I-130 processing will most likely increase drastically. People who believe they are eligible for this waiver are encouraged to consult with an attorney so that their I-130 Petitions can be filed as soon as possible.