Provisional Unlawful Presence Waiver
On March 4, 2013, U.S. Citizenship and Immigration Services began accepting applications for a provisional unlawful presence waiver. The waiver can be filed in the United States using Form I-601A, Application for Provisional Unlawful Presence Waiver, which can be downloaded here.. Significantly, the applicant may remain inside the United States while the application is pending.
Who Qualifies for a Provisional Waiver?
Applicants with a U.S. citizen (USC) or Legal Permanent Resident (LPR) spouse or a USC parent or LPR parent are eligible to apply for a provisional unlawful presence waiver. In other words, the applicant must have a USC or LPR husband, wife, father, or mother to be eligible to submit a provisional waiver.
Am I Eligible for a Provisional Waiver if I Have a Criminal Conviction?
It depends upon the crime. On January 24, 2014, USCIS issued a memorandum regarding applicants with criminal history, which can be found here.. A person is "ineligible for a provisional unlawful presence waiver . . . if USCIS has reason to believe that the [person] may be subject to grounds of inadmissibility" aside from unlawful presence." 8 C.F.R. 212.7(e)(4)(i). In other words, if immigration officers believe that an applicant may be ineligible for anything besides unlawful presence, they will deny the provisional waiver.
However, this new guidance states that an applicant should not be denied based simply because of any criminal conviction. For example, if an applicant has been convicted of a misdemeanor retail theft offense in Illinois, that offense would not make a person inadmissible because there is any exception for a crime that involves moral turpitude that does not involve a term of imprisonment more than one year and for which a person did not actually receive a term of imprisonment of more than 6 months. INA 212(a)(2)(A)(ii)(II). Such an offense would not make a person inadmissible to the United States. Therefore, USCIS would have no reason to believe that the applicant would be inadmissible for something other than unlawful presence.
From March 4, 2013 until January 24, 2014, there have been various examples across the country of provisional waiver denials based upon a conviction for Driving under the Influence (DUI) even if the DUI occurred seven years ago, for instance, and all related fines were paid. Now, if an applicant has a DUI, the provisional unlawful presence waiver should not be denied automatically since a DUI does not make a person inadmissible under any section of the Immigration and Nationality Act. Two DUI's, however, could make a person inadmissible for having a mental disorder on account of being addicted to alcohol. INA 212(a)(1)(A)(iii)(II). If the DUI's were in the last five years, then a provisional waiver will in all likelihood be denied because USCIS would have reason to believe that the applicant may be ineligible for a visa for some other ground besides having been inside the United States unlawfully. In such a case, an applicant must instead submit a waiver after a visa interview abroad and wait abroad until the waiver is approved.
What are the Chances the Provisional Waiver will be Approved?
The approval of a Provisional Waiver depends on whether the applicant can show that his or her U.S. citizen spouse or parent will suffer extreme hardship. This requires two separate things. First, the applicant must show that his spouse or parent will suffer extreme hardship in the United States without the applicant. Second, the applicant must show that his spouse or parent will suffer extreme hardship abroad upon relocation.
“Extreme hardship” refers to the aggregate amount of hardship that a person will suffer upon separation from the applicant or relocation to another with the applicant. Economic factors, health related factors, emotional factors, educational factors, family separation, political factors, and cultural factors are all taken into account in determining whether or not “extreme hardship” exists in any given case. As a general rule, an applicant must show that his or her qualifying relative will suffer a hardship that is beyond that which is normally associated with family separation. That is, economic detriment or family separation, taken alone, will not constitute “extreme hardship” in all likelihood. Therefore, when submitting a provisional waiver application, the focus should be on detailing both the hardship that will be suffered in the United States and in the applicant's home country by the applicant's spouse or parent.