I-601A Stateside Provisional Waivers

Hanes & Bartels Dec. 6, 2013

We experienced a surge of calls and first-time consults after USCIS (the federal immigration benefits agency) rolled out the implementation of the new stateside provisional waiver process last spring (March 4, 2013, to be exact).

This process created a new, better option for countless immigrants. It has always been the case that, even if married to a US citizen, an immigrant who had entered the US by illegally crossing the border cannot “adjust status” – that is, they can’t get their Residency (green card) through an application and interview here in the United States. Instead, they are required to return to their home country and apply for Residency at a US Consulate there. The catch is that if they have spent more than one year without legal immigration status in the US, they are barred from returning legally to the US for at least 10 years. However, that 10-year penalty can be waived by USCIS if the immigrant demonstrates that his/her US citizen spouse or parent will suffer “extreme hardship” if their immigrant child or spouse has to remain outside of the US for 10 years.

All that remains the same under the new system. What has changed is the process of applying for that waiver. Let’s take an example:

Sarah is a US citizen. She’s been married to Mario for 7 years. They have two young daughters together. Mario was born in Mexico, crossed the border for the first time without papers 10 years ago, and has been here ever since. He has never been arrested or been in jail.

In the past, after Sarah completed an I-130, the first step in applying for Mario, and jumped through several more hoops by sending various documents and fee payments to the National Visa Center (NVC), Mario would have gone to a scheduled interview in Mexico. (Specifically at the US Consulate in Ciudad Juarez, across the border from El Paso.) He would be denied at that first interview but given a letter telling him that he was eligible to apply for a waiver (called the I-601). He would then have to file the waiver from there in Mexico, and hope that it would be approved. But those I-601 waivers are not by any means automatic or easy to get, and so Mario was at risk of being stuck in Mexico for 10 years.

Now, however, with this new process, Sarah and Mario start out the same way. But now, instead of completing the final step with the National Visa Center and scheduling Mario’s interview in Juarez, they apply for the waiver first, while Mario is still here with her in the US. To do so, we use a new USCIS form, the I-601A. Like before, if they work with us we will create a detailed submission of evidence of how Mario’s absence will result in “extreme hardship” for Sarah. After about a 4-6 month wait, they get an answer on the I-601A waiver. If it gets approved, now we go ahead and schedule his interview, and Mario goes to Juarez knowing that he already eliminated the requirement that he wait the 10 years outside the US. If all goes well at his medical exam and interview (which it should since he’s never been arrested), Mario will only have to spend about 1-2 weeks total in Mexico before receiving his Permanent Resident card and returning to live with Sarah in the US. That’s far better than the old system, where Mario would have had to spend at best a couple months in Mexico waiting for the answer on his waiver, and possibly many years more if things didn’t go well.

Of course, you may be thinking: what if Mario’s I-601A waiver, filed while he’s here in the US, doesn’t get approved? The good news is that by all accounts, as long as the immigrant does not have a serious criminal record or a history of prior deportations, USCIS will generally not refer the case to ICE (the main immigration enforcement agency) to file deportation charges. So even if the I-601A waiver wouldn’t get approved for Mario and Sarah, they would basically be back to where they started.

As you can see, this new I-601A waiver process offers some real advantages. It allows families to stay together for almost the entire process of getting the spouse’s green card. And it greatly reduces the risk that the immigrant spouse might go back to their home country, not get the waiver, and be stuck there separated from their family for many years. However, it is a complicated process that we simplified greatly for purposes of this example. There are lots of traps along the way, depending on the unique history of each case. Whether you use us or someone else, we highly recommend carefully reviewing your family’s unique situation with a licensed and experienced immigration attorney before attempting this process. A little money spent up front can save you many thousands and years of frustration in the future.