Immigration Law Associates
Chicago Lawyer, Attorney: Green Card, H-1B, National Interest Waiver, J-1, Spouse, Fiance, Student Visa, VAWA, Citizenship, Removal, Korean, Polish, Japanese, Spanish

Frequently Asked Questions About the Proposed “Stateside Waiver”

 

•   What form do I use to apply for a provisional waiver? What are the fees involved?
•  Will USCIS waive the filing fees for provisional unlawful presence waiver applications?
•  Can I file my provisional waiver application concurrently with my immediate relative’s Form I-130?
•  Can I file my provisional waiver application concurrently with a Form I-212, Application for Permission to Reapply for Admission into the United States after Removal?
•  Have the standards for waiver eligibility or proving extreme hardship changed in any way?
•  If I get a provisional waiver, can I adjust my status without leaving the United States?
•  I am currently in removal proceedings. Can I apply for a provisional waiver?
•   If I have already filed a Form I-601, Application for Waiver of Grounds of Inadmissibility from outside the United States, can I apply for a provisional waiver?
•  I would like to file a waiver application, but I am not eligible for the provisional waiver process. What should I do?
•  If I receive an approved provisional unlawful presence waiver, will I be able to work until I leave the U.S. to apply for my immigrant visa?
•  If I apply for a provisional unlawful presence waiver but USCIS denies my request, can I appeal the decision or file a Motion to Reopen or Reconsider?
•  What happens if I withdraw my application for a provisional unlawful presence waiver prior to adjudication? Can I file a new application?
•  If USCIS denies my request for a provisional unlawful presence waiver, will I be placed in removal proceedings?
•  What will happen at my consular interview if I present an approved provisional unlawful presence waiver?
•   What will happen at the consular interview if I present an approved provisional unlawful presence waiver but the Consular Officer determines I have other grounds of inadmissibility?
•  For how long is an approved provisional unlawful presence waiver valid?
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What form do I use to apply for a provisional waiver? What are the fees involved?
Applicants for a provisional waiver must file Form I-601A, Application for Provisional Unlawful Presence Waiver. The application filing fee is $585, the same fee required for Form I-601. There is an additional biometrics fee of $85.00 for applicants who are under 79 years of age.
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Will USCIS waive the filing fees for provisional unlawful presence waiver applications?
No. Generally, a fee waiver is available only if the fee for the underlying application is waivable. The underlying application for most unlawful presence waivers is the I-130, Petition for Alien Relative, and its fees are not waivable.
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Can I file my provisional waiver application concurrently with my immediate relative’s Form I-130?
No. To be eligible for the provisional waiver process, applicants must already have an approved I-130. The approved petition is what starts the immigrant visa process with the Department of State.
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Can I file my provisional waiver application concurrently with a Form I-212, Application for Permission to Reapply for Admission into the United States after Removal?
No. Foreign nationals who must request permission to reenter the United States after removal are not eligible for a provisional unlawful presence waiver.
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Have the standards for waiver eligibility or proving extreme hardship changed in any way?
No. The provisional waiver process is based on the same criteria previously used to determine if an individual qualifies for a waiver, and if they have established extreme hardship to a U.S. citizen family member. Only the process has changed, giving USCIS officers authority to adjudicate provisional waivers for those who qualify.
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If I get a provisional waiver, can I adjust my status without leaving the United States?
No. The waiver does not take effect until the applicant leaves the United States to attend an immigrant visa interview at a U.S. Embassy or Consulate abroad. However, an individual who receives a provisional waiver will likely be separated from their U.S. citizen relatives for significantly shorter periods than is the case under the current process.
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I am currently in removal proceedings. Can I apply for a provisional waiver?
An individual in removal proceedings is only eligible for a provisional waiver if the proceedings have been -- and remain -- administratively closed. If the conditional waiver is granted, such a person should seek termination or dismissal of their removal proceedings before leaving the U.S. for their immigrant visa interview. Otherwise, there is a risk that they will be found inadmissible by the Department of State.

Individuals in removal proceedings who have subsequently received a grant of Deferred Action for Childhood Arrivals must seek administrative closure of their proceedings in order to be eligible for a provisional waiver. In all cases, those who have a final order of removal or other grounds of inadmissibility are ineligible for a provisional waiver.
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If I have already filed a Form I-601, Application for Waiver of Grounds of Inadmissibility from outside the United States, can I apply for a provisional waiver?
No. The provisional waiver process only applies to individuals who are physically present in the United States.
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I would like to file a waiver application, but I am not eligible for the provisional waiver process. What should I do?
A person who is not eligible for the provisional waiver process can still follow the standard process for filing a Form I-601, Application for Waiver of Grounds of Inadmissibility, after their consular interview abroad.
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If I receive an approved provisional unlawful presence waiver, will I be able to work until I leave the U.S. to apply for my immigrant visa?
No. Under the proposed rule, the filing or approval of a provisional unlawful presence waiver will not affect an individual’s current immigration status in the United States. A pending or approved provisional waiver will not:
  • provide interim benefits such as employment authorization or advance parole;
  • provide lawful status;
  • stop the accrual of unlawful presence;
  • provide protection from removal;
  • remove the requirement to depart the United States to seek an immigrant visa; or
  • guarantee visa issuance or admission to the United States.
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If I apply for a provisional unlawful presence waiver but USCIS denies my request, can I appeal the decision or file a Motion to Reopen or Reconsider?
No, there is no administrative appeal if a request for a provisional unlawful presence waiver is denied. However, such a denial does not preclude the filing of another provisional waiver application as long as the applicant meets all of the requirements and his or her case is still pending with the Department of State.

A person whose provisional waiver has been denied may also elect to file a standard I-601 waiver after departing the United States and appearing for his or her immigrant visa interview at a U.S. Embassy or Consulate abroad. Accordingly, denial of a request for a provisional unlawful presence waiver is not a final agency action.
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What happens if I withdraw my application for a provisional unlawful presence waiver prior to adjudication? Can I file a new application?
A provisional waiver applicant may withdraw his or her request at any time before USCIS makes a final decision. Once the application has been withdrawn, USCIS will close the case. The foreign national may subsequently file a new Form I-601A in accordance with the form instructions and required fees.

However, the person’s case must be pending with the Department of State and he or she must notify the Department of State that a new Form I-601A will be filed.
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If USCIS denies my request for a provisional unlawful presence waiver, will I be placed in removal proceedings?
In cases where the provisional unlawful presence waiver is denied, USCIS will follow its current policy which prioritizes the types of cases DHS will focus on for initiation of removal proceedings. For more information, see the DHS Policy Memorandum issued on November 7, 2011.
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What will happen at my consular interview if I present an approved provisional unlawful presence waiver?
If the Consular Officer determines that a provisional waiver applicant is otherwise admissible to the United States and eligible for an immigrant visa, the visa will be issued and the recipient will be allowed to re-enter the U.S. The provisional waiver then becomes permanent and covers the periods of unlawful presence on which it was based.
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What will happen at the consular interview if I present an approved provisional unlawful presence waiver but the Consular Officer determines I have other grounds of inadmissibility?
If the Consular Officer determines that you are subject to other grounds of inadmissibility beyond unlawful presence, the approved provisional waiver will be automatically revoked. If a waiver is available for the other ground(s) of inadmissibility identified by the Consular Officer, you will need to file a Form I-601, Application for Waiver of Grounds of Inadmissibility, after the consular interview to request a waiver for all applicable grounds of inadmissibility, including any periods of unlawful presence.
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For how long is an approved provisional unlawful presence waiver valid?
An approved provisional waiver remains valid until:
  • The Consular officer determines at the time of the immigrant visa interview that the alien is inadmissible for a reason other than unlawful presence;
  • The immigrant visa petition approval associated with the provisional waiver is at any time revoked, withdrawn, or rendered invalid;
  • The immigrant visa registration is terminated due to failure of the foreign national to timely file an application for an immigrant visa; or
  • The foreign national, at any time before or after approval of the provisional waiver or before an immigrant visa is issued, reenters or attempts to reenter the United States without being inspected.
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