Do I need a Provisional Waiver?

Many of the calls to our office concern Provisional Waivers and their applicability. Although these special waivers have been around for over five years there is still much confusion and uncertainty surrounding when they are required and under which circumstances a foreign national may apply for one.

The Immigration and Nationality Act (INA) contains a list of reasons which may prevent a person being admitted to the United States or becoming a Lawful Permanent Resident (LPR). Known as grounds of inadmissibility, they are contained in Section 212 of the Act and include unlawful presence, fraudulent misrepresentation, membership in a terrorist organization, and trafficking in narcotics. Most of the grounds can be waived or forgiven by USCIS if the foreign national makes the appropriate application and meets the relevant criteria for a waiver. Generally the waivers are submitted on Form I-601 and therefore most immigration practitioners refer to them as “I-601 waivers”. Whether or not to approve a waiver is (by statute) a discretionary decision by USCIS which generally means that an adverse decision cannot be appealed (although attorneys have litigated this issue in some limited circumstances); since you only get one bite of the apple it is vital to include every relevant, potential hardship in one’s application.

The huge problem for most foreign nationals who are unlawfully present in the U.S. after Entering Without Inspection (EWI) is that they are not eligible to adjust status the way those who entered with visas generally are. Instead, they must go abroad to apply for an immigrant visa (thereby triggering the 3 or 10 year unlawful presence bar) and apply for a waiver of the unlawful presence at the U.S. Consulate. Historically, the waiver application could only be made AFTER the person was found inadmissible at the interview. So even if you had a U.S. citizen family member petition for you and that petition was approved by USCIS, you could only complete the application for permanent residence by taking the risk of traveling to a U.S. consulate to apply for both the immigrant visa and the waiver. Unsurprisingly, approval rates were generally low and most people opted to either not attend the interview abroad or simply not to even waste time and money filing the petition in the first place. Many people were left in this legal limbo: they had approved petitions but no way to complete the process to legalize themselves.

In 2013, DHS implemented the Provisional Unlawful Presence Waiver, which removed much of the uncertainty surrounding unlawful presence waiver applications abroad. In short, after a relative petition was approved on her behalf, the foreign national could now submit the waiver application (I-601A) to USCIS and wait for a decision while still in the U.S. If approved, and assuming there were no other grounds of inadmissibility, the foreign national could then travel abroad for the interview and be reasonably confident that she could return as a LPR. The 3 and ten year unlawful presence bars which previously would have prevented her returning to the U.S. were no longer insurmountable obstacles. This was a huge relief since the main barrier to applying (traveling abroad and not knowing if your unlawful presence would be forgiven) had effectively been removed.

It should be noted that the approved I-601A only takes effect if the foreign national actually departs the U.S. to consular process abroad; it does not create eligibility to either adjust or change status within the U.S., nor does it create an independent basis to travel internationally and be allowed to return. Also, persons who had interviews scheduled abroad BEFORE January 3rd 2013 are not eligible and must file “regular” I-601 applications abroad under the pre existing system. If other grounds of inadmissibility apply to you (for example certain criminal convictions) then you may not file the I-601A and must file the I-601 abroad, as before. Persons in removal proceedings are generally not eligible to file an I-601A, unless the proceedings have been administratively closed by the Immigration Judge, and DHS does not move to put the case back on the court calendar. Similarly, if DHS agrees to terminate proceedings an I-601A can be filed since the person is no longer in proceedings. We have even been able to convinced DHS to agree to reopen and terminate proceedings where the person had a final order of removal. DHS attorneys are less likely to agree to termination or administrative closure under the current administration, but if you are in removal proceedings or are the subject of a final order of removal rest assured that other avenues of relief may still be available.

The criteria for an I-601A approval are the same as for the “regular” I-601 ULP waiver; extreme hardship to the U.S. citizen (and later LPR) spouse or parent (NOT child!). The Board of Immigration Appeals has made it clear that this goes beyond simply missing a person or being sad because they are no longer in the U.S. We have found in our practice that this does not mean that those factors cannot be relevant; rather they must be extensively explored and documented and we insist that our clients have a psychological report prepared to bolster the hardship claim. While these may be expensive, we find them to be indispensable.

In addition to psychological hardship we have seen that USCIS considers financial hardship a very relevant issue. So for example if the U.S. citizen spouse cannot work due to illness or disability but the foreign national supports the household with her earnings, that would clearly be an extreme hardship on the U.S. citizen spouse if those earnings were no longer available. However, USCIS will not accept a simple statement along the lines of “I earn all the money and he can’t work”; in an example such as above you would need to be able to SHOW the household finances with tax returns, pay stubs, bank statements, and job letters. If the U.S. citizen spouse is disabled then that would need to be demonstrated as well. In a recent case we were even able to

show that the U.S. citizen did not work because he was a full-time student, and being forced to give up his studies to take care of the children full time (in the event his wife was not allowed to return) was an extreme hardship.

Conditions in the foreign country can also be hugely important if there is a possibility that the U.S. citizen spouse will have to accompany the foreign national there. For example, there are parts of Mexico where it is not safe to even take a bus between two towns in broad daylight because of gang warfare and drug cartel kidnappings. It is not difficult to imagine a U.S. citizen who has spent her entire life in the U.S. and who may not even speak Spanish suffering extreme hardship in such an environment. In a similar vein, we have successfully argued that a couple being forced to relocate to China would suffer extreme hardship since the infamous “One Child” population control policy is still in force in many towns and villages. Being suddenly subject to a regime which takes away a couple’s right to decide how many children to have (and which can impose fines and forced terminations to enforce that policy) is a clear extreme hardship on the U.S. citizen spouse.

We have submitted many of these I-601A applications since opening our doors in 2014, and we have found that USCIS can be surprisingly generous with approvals, if the argument is structured in a way that comports with their standard of what qualifies as extreme hardship. Each case is different and each person’s circumstances generate unique hardships which may not have been previously encountered by USCIS. At Alexandre Law Firm, we are never shy about presenting creative, novel arguments to USCIS.

We encourage you to contact us if you believe that you may need to apply for this waiver. Our staff are extremely adept at identifying relevant situations and life events (which clients themselves may not have considered important) and presenting them in such a way that the hardship becomes evident.

By : Alexandre Law Firm, P.C

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