Hardship Waiver Lawyer: I-601A Provisional Waiver Processing Guidelines

Some recent guidelines have come out of USCIS regarding the processing of I-601A Provisional Waivers. New guidance has come to the consular officers related to the final rule permitting certain immediate relatives of U.S. citizens to apply to the USCIS for an I-601A Provisional Waiver of Unlawful Presence before leaving the U.S. for their immigrant visa (IV) interview. The guidelines for processing these waivers is listed below.

USCIS published a final rule permitting certain immediate relatives of U.S. citizens to apply for an I-601A provisional waiver of the unlawful presence grounds of inadmissibility before leaving the United States for their IV appointments. Under existing law, individuals who are not eligible for adjustment of status in the United States must travel abroad to obtain an immigrant visa. It is expected that the new I-601A provisional unlawful presence waiver process will shorten the time U.S. citizens are separated from eligible immediate relatives while those family members are obtaining immigrant visas.

USCIS began accepting I-601A applications on March 4, 2013. Upon receipt of an application, USCIS notifies the National Visa Center (NVC) that the applicant filed an I-601A provisional unlawful presence waiver so that NVC will defer immigrant visa (IV) appointment scheduling for any documentarily-qualified applicant until USCIS adjudicates the I-601A. If the applicant is already scheduled for an IV appointment, NVC will notify the designated post that the applicant has filed an I-601A, indicating that the applicant may choose to postpone his or her appointment. No action is required by post upon receipt of this notification of filing.

After notifying NVC, USCIS collects the applicant’s biometrics at a USCIS Application Support Center and forwards the application to the USCIS National Benefit Center for adjudication. Once USCIS adjudicates the I-601A, it will inform NVC of its decision. NVC will then schedule any documentarily-qualified applicant for an IV appointment and forward the case to post for processing. If the applicant previously had an IV appointment scheduled at a post, NVC will notify the post of the USCIS decision. In these cases, the applicant must contact post directly to schedule a new appointment.

If an applicant, while in the United States, submits an I-601A and his or her biometrics to USCIS and then leaves the country before USCIS adjudicates the I-601A, USCIS will still adjudicate the I-601A even though the applicant left the country. If such an applicant appears at post for an IV appointment, a consular officer may conduct the interview, and if the applicant only has an unlawful presence ineligibility, the consular officer must refuse the applicant pending USCIS adjudication of the I-601A. Once USCIS adjudicates the I-601A, NVC will notify post of the USCIS decision; post may then overcome the earlier refusal and process the case to conclusion following the final rule guidance.

This next point is very important. A USCIS decision denying an I-601A cannot be appealed, nor can the I-601A applicant file a motion to reopen or reconsider the USCIS decision, but an individual may file a new I-601A, which may be based on the current petition or a new one. This will result in some visa cases remaining on hold at NVC or post for long periods of time as individuals file multiple I-601A provisional unlawful presence waiver
applications. Consular officers should apply some flexibility when deciding whether or not to reinstate an applicant whose IV registration was terminated under because the applicant applied for the provisional unlawful presence waiver.

The process for applying for and processing a provisional unlawful presence waiver does mean that those who qualify by only having unlawful presence in the U.S. While the process does make it easier on families so they do not have to be separated during that time, it is still important to make sure there are no other immigration violations before going through the process of getting the waiver. Our office specializes in handling these type of cases and can help you with any questions.