2014 Update: In January, USCIS published important, updated guidance relating to applicants with criminal histories, which significantly expands the number of people who may qualify for the waiver. Please see my blog post on this guidance for more information.
The Stateside Provisional Waiver (SPW) Process (a.k.a. the I-601A Waiver Process)
What Is It?
The Stateside Provisional Waiver process went into effect on March 4, 2013, enabling qualifying non-citizens who are unlawfully present in the U.S. to apply for a waiver of their unlawful presence without first leaving the U.S. and applying for an immigrant visa, and then a waiver, at a consulate in a foreign country.
What Is Unlawful Presence?
Unlawful presence refers to any period of time that a non-citizen is present in the U.S. without permission from the government. A person can be unlawfully present for many reasons; most commonly, she has overstayed her visa or other lawful period of presence or she previously entered the U.S. without permission. Unlawful presence only begins after a person has turned 18 years of age (however, unlawful status while under 18 can still have serious immigration consequences). The law on unlawful presence is very complicated, but for this discussion, it is enough to note that once a person has accrued six months or more of unlawful presence, she is generally not eligible to apply for an immigrant visa / green card without first leaving the U.S. The problem is that once such a person leaves the U.S., she will be barred from reentering the country for a period of three or ten years, depending on the total amount of unlawful presence she accrued before leaving. To get around this bar, certain people are eligible to apply for a waiver of unlawful presence that, if approved, will allow them to avoid the harsh consequences of the three and ten-year bars.
How Does the SPW Process Help?
Previously, to apply for a waiver of unlawful presence, a non-citizen first had to leave the U.S. He would then have to apply for an immigrant visa at a U.S. consulate abroad. However, by leaving the U.S., he would trigger the effect of the three or ten year bar, meaning that he could not legally reenter the country for many years. For this reason, he would then have to file an application for a waiver of the effect of the three or ten bar. Because his waiver application would take months to process, the person would have to wait outside the U.S. for sometimes up to half a year or more before learning whether he would be allowed to reenter the country as a lawfully admitted immigrant.
The SPW process streamlines the above procedure by allowing a small group of qualifying individuals to apply for a provisional waiver without first leaving the U.S. So, instead of waiting outside the country to learn whether his waiver application has been approved, a qualifying individual can apply for the waiver inside the U.S. and then wait for it to be processed. If his application is approved, he can then leave the U.S. and apply for an immigrant visa, spending only days, instead of months, outside the country.
The SPW process also reduces the risk of applying for a waiver of unlawful presence, because a qualifying individual can apply for a provisional waiver without leaving the country and potentially not being able to reenter in the event his waiver application is denied. The government has indicated that in most (but not all) cases, if it denies a person’s SPW application, it will not place the person in deportation proceedings. Of course, the government could change its position, and this is a risk that anyone thinking of applying for a waiver should first discuss with an immigration attorney.
The SPW process is limited to a small group of non-citizens who have accrued six or more months of unlawful presence in the U.S. To be eligible, a person must meet the following requirements:
- She must be over 17 years of age or older.
- She must be physically present in the U.S.
- She must be the spouse, parent, or unmarried child under the age of 21 of a U.S. citizen. The U.S. citizen must file an immigrant-visa petition on behalf of the applicant. Note that if the applicant is the child of a U.S. citizen, she can only apply for the waiver if she is 17 years or older but not yet 21.
- She must be able to show that her qualifying relative, who can only be her U.S. citizen spouse or parent, will suffer “extreme hardship” unless the waiver is approved and she is able to return to the U.S. The petitioner and the qualifying relative do not always have to be the same person; in addition, an applicant may have more than one qualifying relative. Extreme hardship is difficult to prove, and I therefore strongly recommend that anyone considering applying for the provisional waiver first hire a lawyer to assist with the application.
Even if a person meets all of the above requirements, she may not be eligible if she has a criminal record or certain other issues in her past that could even potentially make her inadmissible to the U.S., and it is therefore very important that her lawyer carefully examine her background, criminal and otherwise, to determine if there are any potentially disqualifying factors.
Who Will Be Disappointed?
On January 3, 2012, the Department of Homeland Security, more specifically, U.S. Citizenship and Immigration Services (USCIS), issued final rules governing the SPW process. You can find a PDF of the rules, including a summary, here. Disappointingly, these rules significantly restrict who is eligible to apply for a provisional waiver. Here is a non-exhausitive list of disqualifying factors:
- Anyone USCIS has “reason to believe” might be inadmissible to the U.S. for any reason other than unlawful presence. For example, USCIS could decide that a person is inadmissible if she has been arrested by law enforcement, even if she was never convicted of any crime (although USCIS has indicated that minor traffic offenses generally will not disqualify a person). Therefore, anyone considering applying for a provisional waiver who has any criminal history whatsoever should definitely consult a lawyer before applying. Note that this “reason to believe” provision is not limited to criminal activity; it applies to all potential grounds of inadmissibility under the Immigration and Nationality Act.
- Anyone who initially applied under the traditional rules for a waiver of unlawful presence and for whom the Department of State initially acted to schedule an appointment before January 3, 2013. However, it is possible that such a person could withdraw his application and reapply (but he should consult a lawyer regarding this possibility).
- Anyone in removal (deportation) proceedings before the immigration court. Happily, the government has announced that it will generally temporarily close removal/deportation cases in order to allow eligible persons to apply for the waiver (again, see a lawyer).
- Anyone who has already received a final order of removal (deportation or exclusion) from the immigration court (there may be remedies available — see a lawyer).
- Anyone who has a pending application for a green card filed with USCIS.
In practice, the above ineligibilities disqualify a large number of people, even many who have had the misfortune of being arrested or charged with crimes for which they were never convicted. The traditional unlawful presence waiver may still be available to such people, but as was noted above, the traditional process is more burdensome and risky. Also, remember that if a non-citizen leaves the U.S. before receiving an approved provisional waiver, he or she will be disqualified from receiving the waiver and barred from reentering the country. It is also important that the person not leave prior to receiving an appointment with the foreign consulate. My advice? Don’t even think about applying and absolutely do not leave the country without first consulting with an immigration lawyer.
What Is the Process for Applying?
The application process is complex and involves multiple government agencies. Here is a very basic overview:
- The applicant’s relative files a visa petition on his behalf using Form I-130. Once approved, the I-130 will be transferred to the Department of State’s National Visa Center (NVC). The NVC will then contact the applicant by sending out fee invoices — the applicant must receive these invoices before he can move on to the next step.
- The applicant prepares his application for an immigrant visa and files it with the NVC. The immigrant visa application involves first paying the fee using the NVC’s online system and then submitting the online application form (Form DS-260, accessible here after fee payments are processed). The applicant must also submit certain documents to the NVC, including an affidavit of support (Form I-864) from his financial sponsor. (The applicant should not complete this process before submitting the the separate waiver application, as doing so can result in extra hassle.)
- The applicant prepares and files his application to USCIS for the waiver using Form I-601A (not Form I-601). The waiver application is the most critical portion of the application, and attachments to Form I-601A may need to be extensive (for example, I have submitted as many as 140 pages in support of a waiver application). After receiving the waiver application, USCIS notifies the NVC to place the applicant’s visa application on hold until it has processed the waiver application.
- USCIS processes the waiver application. Anecdotally, and in my experience, USCIS is currently taking about six months to process waivers — during this waiting period, the applicant should comply with all USCIS instructions, including the fingerprinting appointment. USCIS may approve or deny the waiver or send a request for more evidence (RFE). Assuming that it approves the waiver, USCIS will notify the NVC to complete processing of the visa application; NVC will then schedule an appointment for a visa interview at the foreign consulate.
- After receiving the appointment, the applicant makes travel arrangements and completes the final steps necessary for receiving a visa. For example, if the interview will be at the consulate in Ciudad Juarez, the applicant must attend a fingerprint appointment and complete a medical examination at approved facilities in Juarez. Finally, the applicant attends his visa interview, is hopefully approved, and then waits to receive his immigrant visa by courier service (in Mexico, DHL).
- After he has received his visa, but before reentering the U.S., the applicant should pay the $165 USCIS immigrant processing fee by using the online system to receive his green card. The applicant then uses his visa to reenter the U.S. His green card should arrive in the mail within a few weeks.
Where Can I Find More Information?
Here are few additional, useful resources:
- The Immigrant Legal Resource Center (ILRC) has an excellent web presentation on the process (20 minutes in length).
- The USCIS website contains an overview of the Stateside Provisional Waiver process. The Department of State’s website also has some additional information. In addition, the U.S. Consulate General in Ciudad Juarez has addressed the procedure for informing the State Department that a waiver application is pending.
- USCIS has issued a Notice regarding rejection of certain waiver applications.
- AILA attorney Laura Lichter has written a useful article (January 4, 2013) highlighting important points about the stateside provisional waiver process.
- The National Immigration Law Center has posted an article (January 2013) on its website providing a particularly clear explanation of the rules pertaining to the qualifying relative.
- USCIS has issued guidance on who it will refer to ICE for possible deportation. Please do not rely on this guidance alone; consult a lawyer.