The USCIS immigration agency expands eligibility for an I-601A provisional waiver.

The main advantage of the expansion is that permanent resident green card holders (LPR’s) may now help foreign spouses or children qualify for the I-601A provisional waiver.  Until now, only U.S. citizens could help a foreign spouse or child obtain an I-601A waiver.

Immigrants are often confused whether a waiver applies or not.  

The I-601A provisional waiver only applies to those who are unlawfully present in the U.S.  A foreigner who is outside the US, has criminal convictions or committed immigration fraud should consider an I-601 waiver.

To qualify for the I-601A provisional waiver, a foreign applicant must prove that their U.S. citizen or lawful permanent resident spouse or parent would suffer “extreme hardship” if the foreign applicant is not granted the waiver.

Visa Classification/Qualifying Relative

2013 Rule

Under the 2013 rule, a provisional waiver was limited to those immigrating to the U.S. as “immediate relatives,” (spouses and children of U.S. citizens and parents of adult U.S. citizens) who could prove extreme hardship to a U.S. citizen spouse or parent.

• Note that the adult USC child cannot help the foreign parent obtain a waiver.  This is true even though the parent is an immediate relative.

2016 Rule

Under the 2016 rule, anyone who is eligible for an unlawful presence waiver under INA §212(a)(9)(B)(v), may apply for a provisional unlawful presence waiver, regardless of their immigrant visa classification.

In other words, if the visa applicant can demonstrate extreme hardship to a U.S. citizen or LPR spouse or parent, he or she may apply for and receive a provisional waiver, whether the basis for the immigrant visa is an employment-based preference category, a family-based preference category, the diversity visa lottery, or a special immigrant classification.  

You won’t qualify for an I-601A provisional waiver if you don’t have a qualifying relative who is a US citizen or green card holder.  In that case, consider an I-601 waiver.

Applicants should not submit a request for a provisional waiver under the expanded guidelines until the final rule takes effect on Aug. 29, 2016. If you do so before that date, USCIS may deny the application.

Please contact our office if you believe you qualify for an I-601A provisional waiver.