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I-601A—Not All It’s Cracked Up To Be

business-law-883985-mIn March, 2013, both immigration lawyers and their clients were excited to begin filing Provisional Waiver applications.  These applications benefitted those undocumented persons who were married to United States citizens but who had entered the country illegally—and therefore unable to Adjust Status, or obtain their lawful permanent residence inside the United States.  This Provisional Waiver eliminates “inadmissibility” for “Unlawful Presence” inside the United States or the inability for someone to re-enter the United States because they had entered illegally and spent time in the United out of legal status.

The United States Citizenship and Immigration Services (“USCIS”) changed its regulations to allow these waivers of inadmissibility to be processed and approved inside the United States.  This allows the applicant to stay inside the United States until the application is either approved or denied.  Before the change, applicants had to wait long periods of time outside the United States for a waiver to be approved.  However, Provisional Waivers are only available if the applicant’s only basis of inadmissibility was time—unlawful presence and no other type of criminal or other basis of inadmissibility.

As with other types of waivers, the same rules apply as to the need to show that the qualifying relative—limited to a spouse or parent who is a lawful permanent resident or US citizen—will experience “extreme hardship” if the waiver is not approved and the applicant be allowed to return to the United States after a quick trip outside to receive his or her immigrant visa at the embassy or consulate in the applicant’s native country.  Hopes were high, because, in the case of Mexico, the consulate in Ciudad Juarez, the only consulate in Mexico processing immigrant visas, approved a relatively high percentage of waivers in the past.

But since May, immigration attorneys have been disappointed with the decision making process of USCIS with regard to these waivers.  It appears that almost any criminal conviction, including petit larceny and DUI, have caused USCIS to deny the waiver applications because it claims that there is a “Reason to Believe” that the applicants may have other bases of inadmissibility beyond just Unlawful Presence.  In fact, in a recent development, USCIS has decided to postpone all decisions with applications with any criminal convictions.

So if you are thinking about filing an I-601A Provisional Waiver after a family petition is approved, and the applicant has any criminal conviction, we suggest that you wait until USCIS has figured out better how to adjudicate these applications.

For more information, please call the attorneys at the Monaco Law Group.  They will be able to give you the most updated information on Provisional Waivers.

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