I601A Provisional Waivers Are Not Available Yet
NOTE: CLICK HERE SEE IMPORTANT UPDATE ON THE I-601A PROVISIONAL UNLAWFUL PRESENCE WAIVER TIMELINE.
Although I601A provisional waivers have been a hot topic of conversation throughout most of 2012, as of December 30, 2012 it is not possible to apply for a provisional waiver. The immigration community has been promised that the final regulations would be published before the end of 2012. If the final regulations are not published on December 31, 2012, hopefully they will be published in early 2013. After the final regulations are published, USCIS will be able to move forward with implementing the I601A provisional waivers program.
You should not submit an application until USCIS is ready to accept applications. You can confirm when the program is available by checking out the USCIS I601A provisional waiver information page.
What is an I601A provisional waiver?
An I601A provisional waiver will be an excellent option for those people who will need an unlawful presence waiver if they depart the United States in order to attend an immigrant visa interview. Under the current system of unlawful presence waivers, families of United States citizens risk lengthy separations because the application cannot be submitted until after the immigrant visa interview. This means that the family will be separated while they wait for a decision to be made. This process can take months, and if the waiver is not approved the family could be separated for 10 years. The I601A provisional waiver process will allow families to apply for the unlawful presence waiver before departing the United States, which should greatly reduce the time the family is separated and will reduce the risk of traveling overseas for the immigrant visa interview.
Should I wait for I601A provisional waivers to become available before starting the immigration process?
The best timing of your application is something that will depend on your particular circumstances. For some people, it will be best to go ahead and start the immigrant visa process by filing an I-130 package now. For others, it may be a better option to wait until the new process becomes a reality. Your immigration lawyer will be able to help you determine the best course of action for your family. If you are in the DC or Virginia area, you can use the contact form on this website to set up a time to discuss your options with me. If you are outside of the DC and Virginia area, you can also use the contact form to set up a time for a Skype call with me to discuss your options.
About Kimberley Schaefer
Hi Kimberley , my wife is in nicaragua she is been there for the last 15 months , we got marry in october of 2011 and I file d the form I130, I received a letter from the NVC that they will let us know as soon they have a date for the interview, she was here illegally for 6 years . Did she needs to apply for the I601 waiver now or wait until the interview thanks. I”m a US citizen we got marry in Nicaragua .
Luis,
If you have not already started preparing the I601 waiver, you should go ahead and start that process now. It can take a lot of time to collect all of the supporting documents and to prepare the package. As a point of reference, I generally plan to spend 30-40 hours of attorney time on preparing a waiver package…and that doesn’t include the time it takes for my clients to obtain the documents that are needed from government offices, schools, doctors, social workers, family and friends, etc.
If all goes well at her visa interview, they should tell your wife that she needs an unlawful presence waiver and they will give her information on how to schedule a follow up appointment at the embassy after she obtains a waiver. At that point, the waiver application can be submitted. Many people try to have the waiver package ready so that they can file it immediately after the initial visa interview at the embassy.
If you’d like to speak in more detail about your case, feel free to contact me using the contact form on this website.
Sincerely,
Kimberley
Hi Kimberly schaefer I’m in the process of get married this month have 2 children’s been with my fiance for 7 years she is an American citizen and I’ve in the states for 12 years what is best for us to do, file for any form before the I-601 or I-601a waiver.
I’d need to learn more about your situation before I could advise you on the best way to move forward with your case. If you’d like to set up a free phone consultation or Skype consultation, you can do so by completing the contact form on this website. The consultation will give us a chance to talk more about your situation and what options may be the best for you.
Kimberley
Hi Kimberly I became a citizen thru my mother my only proof of citizenship is my passport. I want my spouse to get his residency we have been married for 10 years and he has been in the United States for 13 years . Me not having my citizen certificate will this keep my husband from getting his residency if we file for the i601A waiver ?
Typically, when you file an I-130 (which is the first step in the green card process) you only need to present proof of your citizenship. Depending on the person submitting the I-130, this can be a US birth certificate, a valid US passport, a certificate of citizenship or a naturalization certificate. If your US passport is not expired, you should be able to use it to show you are a US citizen.
Keep in mind that the I601A waiver is brand new, so we don’t yet know exactly how it will work. However, at this point I would say that it is unlikely that you would need a certificate of citizenship instead of your US passport.
Hi Ms. Schaefer,
My husband and I have been together for 12 years, married for over 3 years and have 4 children together. He attended his visa interview in Juarez but was barred for 10 years and the original I-601waiver was denied ( not eligible ) because of his re-entires ( everything else looked good according to the officer ) with a beginning date of Dec. 21st 2009, so 3 years have already passed and our family has been seperated for awhile and i can’t imagine going through this for another 7 years. Do you think he would be eligible for this new I-601a waiver?
If your husband has the “permanent bar” due to unlawful reentries, he won’t be eligible for the I601A waiver. The I601A waiver is only for the 3-year unlawful presence bar and the 10-year unlawful presence bar. In addition, if he is already in Mexico, he won’t qualify for the I601A waiver because it requires that the applicant be in the United States.
Please keep an eye out for news related to comprehensive immigration reform. President Obama promised that he would enact comprehensive immigration reform within the first year of his second term. At this point there is no way to predict if comprehensive immigration reform will become a reality. Even if it is passed this year, there is no way to know at this point what types of reform will be included. But, just in case it does become a reality, you should check to see if any changes would offer new options for your family. In addition, you may want to contact your Senators and Representative to let them know that you want them to support comprehensive immigration reform and that you would like them to include a waiver option for those who are subject to the “permanent bar.”
He is eligible for the waiver after the 10 year bar just not before the 10 year mark. Does that make a difference?
Taryn,
Please contact me through the contact form on this website. It will be best to discuss your situation in a more private forum so that we can see if there is a way to help your husband return to the United States more quickly.
Sincerely,
Kimberley
Hi Ms. Schaefer,
With the soon to be enacted 2013 Immigration Reform Bill this year would my husband be eligible in any way? Atleast reduce the amount of years he has in waiting? I read that somewhere they would be helping those who are in the family based backlogs first by reducing the amount of years.
Taryn,
It is important to keep in mind that right now there is only a proposed bill for immigration reform. There is no guarantee that the bill will be enacted into law. Even if it is enacted into law, the final version that becomes law could be much different than the proposed bill that was introduced earlier this week. With this in mind, it is impossible to predict whether there will be any new law or who it could help.
Sincerely,
Kimberley
Hello Kimberley Schaefer, How are you?
Hope you are well. My wife is from US and I am a Pakistani citizen. we got marry in May, 2012 and I filed the form I130, I received a letter from the NVC (I601A Provisional waiver of unlawful presence).
Can you help us, What is our next step ?.
How can i notify the NVC by email ?.
I am looking forward your reply.
Thank you and Best Regard.
ALI.
Ali,
The NVC sent out a form email concerning the I601A waiver process to everyone with pending immigrant visa cases, even those who do not need an I601A waiver or who don’t qualify for an I601A waiver. If you’d like me to evaluate your situation to see if you need an I601A waiver, please complete the contact form on this website. The contact form will give us a private way to communicate and makes it much easier for me to keep track of contacts.
Sincerely,
Kimberley
Hi KImberly my name is juan i am a naturalized us citizen my wife and i have been married for 5 years we contracted a lawyer bout three years ago and have been waiting ever since for my wifes residency acoording to them they were waiting for a FOIA to arrive today we went and we were told that we would have to start the process all over in order to qualify for this new law. We have cancelled several interviews due to this lawyers orders. so my question is does my wife have to start the process all over and does she qualify for this new law
Juan,
I’d need more details about your case in order to confirm whether you would need to start the process over.
Because of the way the I601A regulations were written, if your wife had been scheduled before January 3, 2013 for an immigrant visa interview at an overseas embassy then she would not be eligible for an I601A waiver based on the I130 petition that you had previously filed. This is true even if you rescheduled or cancelled the interview.
There has been some discussion about whether filing a new I130 petition would then make a person eligible for an I601A waiver based on the new petition. If you would like to learn more about this option and have me evaluate your waiver case, please feel free to contact me directly by using the contact form.
Sincerely,
Kimberley
Hi Kimberley!!!
I am leaving for 8 yeas in Uruguay since i come back from de United States and I completed my case in the NVC already, now I have to apply for I-601A provisional waivers. I would like to know wich is the difference between I-601A provisional waivers and others waivers. and te principal question is besides an strongly hardship letter i should write, the fact that i am living in my country for 8 years already, count in the moment they have to make a decission about my case? I would like to receive a response soon, thanks a lot.
Claudia,
If you are currently in Uruguay and need an immigration waiver, you most likely would apply for an I601 waiver after your immigrant visa interview. The I601A waiver is only an option if you are currently in the United States and need an unlawful presence waiver in order to get an immigrant visa.
The extreme hardship standard is the same for I601 and I601A waivers. The new I601A waiver does not change the law or how extreme hardship is determined. It only allows certain people to apply for the waiver before they depart the United States for their immigrant visa interview.
When USCIS considers whether to approve a waiver application, they balance all of the positive and negative factors of the case. A strong hardship letter alone will not win your case. You need to support the letter with solid evidence that is presented in a clear, organized manner. In addition, because of how all of the factors of a case are balanced together, it is impossible to give an opinion of how a single fact (such as how long a person has been outside of the United States) will impact a case. All of the facts of a case and all of the positive and negative factors are considered together and are not viewed as isolated items.
Sincerely,
Kimberley
Thanks a lot Kimberley for your value response!!!
Hello Kimberly
My big worry its about …what should I do now that I have my appointment schedule in march … But I don’t know what to do … My wife is citizen and she is in the army but she is in Iraq right now and comes back until July , I have my daughter w me . What can I do so the visa center people can CHANGE my appointment in the u.s.a without leavin the country and there noone who can watch my daughter while I’m gone and her mommy in Iraq…. Please help me out …. Thank you …
Yoel,
Most embassies and consular posts have an email address and phone numbers for immigrant visa applicants. Depending on where your visa is scheduled, you may be able to reschedule your visa interview this way.
Before you depart the United States, however, make sure that you understand whether you will need an immigration waiver in order to return to the United States. It sounds like you are currently in the United States. Do you know if you have any unlawful presence? Are there any other reasons why your immigrant visa may be denied? For example, have you ever made a misrepresentation on an immigration application, claimed to be a United States citizen (such as when appying for a job), been refused entry to the United States or have ever been convicted of any crime (including DUI/DWI convictions)? You should not depart the United States until you are certain that you will not have any unlawful presence issues or other problems with your immigrant visa.
Because you posted your comment on an I601A waiver article, you should also keep in mind that if you are applying for an I601A waiver, you should not leave the United States until after the I601A waiver has been approved.
As a final option, have you and your wife explored whether parole in place may be an option for you instead of an unlawful presence waiver?
hello,
i am a us citizen and i am married 9yrs to my husband who is from colombia. we have been together for 19yrs and have two children together. their ages are 4 and 16. we husband as of 2004 was ordered removed and just last year was detained but i managed to get him a stay of removal for one year and i filed my i130 on march 30th 2012. We are still waiting for that to get approved. I think my husband is elligable for the i601a waiver. he has been in the us since 1991 and has never left. i guess i want to know for sure if he is elligable and what the proccess is? will he be able to interview for a visa here? do we have to wait till my i130 is approved? can he get a visa phisical exam before we even get his appointment? there are so many other ? in regaurds to this. we have all our supporting documents from doctors and personal reff. letters ,letters from m sons school, letters and full from my congressman and local legislator. the congressman just sent me a letter to ask what help i need with next and that is what i am trying to figure out.
Tabitha,
You need to schedule a consultation appointment with an immigration lawyer to review your case in detail. Your husband’s removal order will have a significant impact on whether he will be eligible for an I601A waiver. An immigration lawyer will need to review all of his immigration court papers to identify whether there is a way to reopen his immigration court case so that he may be eligible for an I601A waiver.
Kimberley
Where does this leave the people that already have a bar and are out of the US, are the applicable for the waiver?
The I601A waiver did not replace the I601 waiver for unlawful presence. People who are already outside of the United States can still apply for an I601 waiver for unlawful presence.
My husbamd and I have been married for 12 years. I want to apply for him but don’t know where to start. We have 4 children together and 3 from my previous relationship total of 7. He is the main support for our home economically. I don’t want him to depart but I also dont know what the laws are either. I am a born citizen and wpuld like to apply for him. He is from Mexico.
Mari,
For most people the best place to start will be to schedule a consultation appointment with an immigration lawyer. At a minimum you’ll want to make sure that you understand all of your options before you begin. If an I601A waiver is your best option, you’ll want to make sure that you qualify for the waiver before you invest the time and money in the immigrant visa and waiver process.
If you do qualify for the immigrant visa and I601A waiver process, the first step will be to submit an I-130 petition. This is the form that is used to ask the government to allow your husband to immigrate. You won’t be able to move forward with the process until the I-130 petition is approved. It often takes 5-7 months for an I-130 petition to be approved, so you’ll want to focus your efforts on the I-130 first. After the I-130 is approved, you’ll then be able to move forward with the immigrant visa process and submitting your I601A waiver application.
If you are sure about the process, I strongly recommend that you work with an immigration lawyer on your case. It is very easy to make mistakes with immigration paperwork, and any mistakes can delay the process or even to visa denials.
Hi Kimberly,
My wife is now applying for citizenship. I am a citizen. She has unlawful presence so I believe we will be needing to fill I-601A. However she is “stateless” person with no other country’s passport. Is there a way for her to apply and still stay in U.S?
It sounds like your wife is applying to become a permanent resident, which is the first step in becoming a citizenship for most people.
Before you begin any paperwork, make sure that you consider all possible immigration options. For example, depending on how your wife entered the United States, she may be eligible for adjustment of status, which would allow her to obtain her green card while in the United States. Not everyone is eligible for adjustment of status, and you should consult with an immigration lawyer to learn whether this may be an option for your wife.
Hello kimberly, i filed the i130 and already recieved an approval, now before i apply for the i601A do i need to submit an affidavit of support and an immigrant visa application to the depatment of state before the 1601A. and when submiting a 1601a what else will i need to have ready like letters???? by the way my husband is here ilegally for 10 years. thank you
You will need to pay the immigrant visa fee at the National Visa Center before you can submit your I601A waiver.
In terms of what is needed for your I601A waiver, each case is different. When I assist clients with waiver applications, I typically estimate that the application will take between 20 to 40 attorney hours. Much of this time is spent on identifying the strongest hardship factors, preparing the different written statements and legal memos, and identifying the best supporting evidence to include in the waiver package.
Hi, my husband has his visa interview in a month in ciudad juarez. I was wondering if he were to not go, and let his case close (Would it take a year to close?) And then could I petition him again as a us citizen (i just applied), and apply for the i601a waiver?
Depending on the situation, it may be possible to change from a consular interview with an I-601 waiver to the new I-601A process. Depending on when your interview was scheduled, it may be possible to accomplish this without filing a new I-130. Other people will need to withdraw the current I-130 and start the process over.
I would need to do an in-depth consultation with you before I could advise you on your options. Generally speaking, what you are planning on doing is considered an advanced issue and the assistance of an immigration lawyer would likely be helpful.
My wife entered USA 1999 without inspection , We have a one daughter who born USA 2000, now I am USA citizen, What is the process to apply for her Green card, can you explain me please?
Golam,
The best place to begin is to learn about both the I-130/immigrant visa process and the I-601A waiver process to see if this would be a good option for your family. If it is, you would begin by filing an I-130 petition. After it is approved your case will be forwarded to the National Visa Center. At that time you would pay the immigrant visa fees and submit your I-601A waiver package. If the waiver is approved, you would move forward with setting up the immigrant visa interview in your wife’s country of citizenship. If all goes well at the interview, she would then be able to return to the United States with her immigrant visa and would become a permanent resident upon her arrival.
In some cases there may be better options available that would allow your wife to obtain a green card without having to depart the United States for an immigrant visa interview. In addition, not everyone will be eligible for an I-601A waiver or immigrant visa, so you need to make sure that you and your wife meet the qualifications for both before you begin. One of the benefits of working with an immigration lawyer is that a lawyer can help you identify the best options available to you and can make sure that you qualify before you begin any application process.
Kimberley
hi! My sister was an international student so she entered the US legally with the US visa. But since she got pregnant, she dropped out of school now she’s out of status and basically illegal living in US. Her son is now only 2 and is US citizenship. Is I601a form going to help her case? and what happened after she got approved? they will give her a green card or something?
You sister may have better options than an I601A waiver. For example, if she is married to a United States citizen she may be able to apply for adjustment of status. If adjustment of status is an option for her she would not need an I601A waiver. Also keep in mind that if she does not have a US citizen spouse or parent, she will not qualify for an I601A waiver. A US citizen child is not a qualifying relative for an I601A waiver.
The best thing that you sister can do is to talk to an immigration lawyer about her complete immigration history before she files any papers with the government. At a minimum, she needs to make sure that she understands all of the options that are available to her and she needs to make sure that she meets all of the requirements for the immigration benefit before she applies.
Hi Kimberley so my question is if I entered the US in the year 2000 still a minor .. I was 7 and now I have been married to a us citizen for 4 yrs I have 3 kids and I have never again had contact neither with immigration or police or anything of that sort … What type of things could I include in the package in order to proove the extreme hardship .. I graduated here from high school … Took a lot of extracurricular activities I don’t know can you give me ideas of the stuff I can gather ? Please and thanks also I lost all connections with family in Mexico since its been 13 yrs that I’ve been here
Sandra,
You need to keep in mind that the key is to show the extreme hardship to your qualifying relative (your US citizen husband). Once you show the required extreme hardship, USCIS will then balance all of the positives and negatives in your case to determine whether your waiver should be granted in the “exercise of discretion.” This basically means that even if you show the hardship, you still have to show that you deserve the waiver. Also keep in mind that the I-601A waiver is only good for unlawful presence and would not help you if you are subject to any other ground of inadmissibility. If you aren’t sure if any other inadmissibilities apply to you, you should set up a consultation with an immigration lawyer.
Most of what you mention would be positive factors in balancing the positives and negatives of your case. But you still need to show extreme hardship to your qualifying relative. Having graduated from high school, participated in extracurricular activities and not having a police record all help to show that you are a good person, but they do not show that your husband will experience extreme hardship if your waiver is not granted.
It is impossible for me to give you specific ideas of what to include in your waiver package or hardship letter without first doing an in-depth interview. I generally take between 20-40 hours to prepare a hardship waiver package and most of that time is spent on identifying the hardships and the best evidence to prove each hardship. It simply isn’t possible to give a meaningful answer without first learning much more about your situation and spending a lot of time working with you.
If you’d like to learn more about hardship letters, you may want to get a free copy of my Extreme Hardship Letter Special Report by clicking on this link.
Considering how long you’ve been in the United States, you should also make sure that you don’t have any other options for obtaining a green card. If you haven’t explored Deferred Action for Childhood Arrivals (DACA) you should also review that program to see if it would provide you with options in the event that you don’t qualify for an I-601A waiver.
Kimberley