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The proposed expansion of the I-601A provisional waiver of inadmissibility due to unlawful presence has finally become a reality.  The President announced the expansion of the waiver as part of his November 2014 suite of executive actions designed to ameliorate the harsh results of strict enforcement of U.S. immigration laws. Of course, the heart of those reforms was deferred action for the parents of U.S. citizens, which remains delayed by an injunction imposed by a Texas judge which the Supreme Court punted on.  Not held up by the injunction is the expansion of the I-601A provisional waiver to a larger group of beneficiaries.  Twenty one months after it was first proposed, the expanded I-601A provisional waiver is now ready to take launch.

The I-601A provisional waiver was first announced in 2012.  Since then, we have sent dozens of individuals to embassies in their home country to obtain immigrant visas and return as residents.  It has been a moving experience to see clients return home to see family they may have not seen for decades and to return to the U.S. with the security of residency.  See: Jorge, Juan Carlos, Oscar, and Jr.. The provisional waiver has been an excellent development for immigration law.  However, it was limited in that it only applied to immediate relatives, meaning those who are seeking residence as the spouse, parent or child under 21 of US citizens.  People seeking residence on other grounds such as employment or on other family members, like a permanent resident spouse, could not take advantage of the provisional waiver.

The expansion of the provisional waiver was made official on July 29, 2016 and will become effective on August 29, 2016.  The new provisional waiver will be available to anyone who is the beneficiary of any type of immigrant petition, whether it is family or employment based.  Individuals who qualify for residence based upon employment petitions or who are over 21 and are the son or daughter of a citizen can now seek to take advantage of the provisional waiver.

To recap, the provisional waiver exists to waive inadmissibility due to unlawful presence, commonly understood as the three and ten year bars.  Individuals who entered the U.S. without inspection or overstayed a time-limited visa are unlawfully present in the U.S. and, if those periods exceed 180 days and they depart the U.S., they are subjected to a bar on returning to the U.S.  Depending upon how long the individual was unlawfully present, the bar can be either three or ten years.  In addition, many of these individuals are ineligible to seek residence in the U.S.  Thus, the practical effect of the three and ten year bars has been to force people to remain in the U.S. and not to fix their immigration status.  The I-601A provisional waiver was initiated to allow people to obtain a waiver of inadmissibility due to unlawful presence prior to departing the U.S., giving them confidence that they will be able to return.  By eliminating the risk of being stuck apart from family and homes in the U.S., the provisional waiver has helped many people regularize their status.

The expansion of the provisional waiver now allows a larger group of individuals to seek residence through consular processing of an immigrant visa.  Individuals who are the beneficiaries of employment-based cases or who have family members who are residents can now also seek the provisional waiver.  Of course, they must still demonstrate that denying them residence would cause extreme hardship to their U.S. citizen or permanent resident family members.

The government’s notice contained an additional development on eligibility for provisional waivers.  Originally, the provisional waiver was unavailable to anyone with an outstanding and unexecuted removal order.  We were able to get around this issue by reopening and vacating removal orders for some of our clients, but that process was always uncertain and risky.  The new regulation allows individuals with removal orders to seek a provisional waiver provided that they first get an I-212 Permission to Reapply after Removal application approved.  This provision adds another time-consuming step, but provides recourse for individuals with old removal orders who are now eligible for immigrant visas based upon family or work relationships.

If you have any questions about the I-601A provisional waiver process, feel free to contact us at 202-644-8600 or consults@benachcollopy.com