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Consular Processing

I-601A Provisional Unlawful Presence Waiver


Beginning March 4, 2013, certain immigrant visa applicants who are spouses, children and parents of US citizens can apply for provisional unlawful presence waivers before they leave the United States to consular process. The new process, instituted by President Obama, is expected to shorten the time US citizens are separated from their immediate relatives while those family members are obtaining immigrant visas.

Under the existing I-601 extreme hardship waiver process, which remains in effect, immediate relatives cannot apply for a waiver until after they have appeared for an immigrant visa interview abroad. Under the I-601 process, the consular officer could make a decision on the I-601 at the interview, or could retain the case for further review, which could last months. Meanwhile, the family would remain separated until the consular officer approved the case.

If the I-601A waiver is approved, the alien must still depart the US to attend the consular interview. The main advantage of the I-601A process is that the alien will know beforehand whether the waiver case will be approved at the consulate. At the Department of State consular interview, the interviewing officer must still determine whether the alien is admissible.

The I-601A Provisional Unlawful Presence Waiver is more exclusive than the standard I-601 in several respects. First, the I-601A only applies to aliens who are inadmissible based on unlawful presence. If an alien is inadmissible due to a criminal conviction, the I-601A will not help. Second, the I-601A must be physically present in the US at the time of filing the I-601A with USCIS. Third, the I-601A is decided by USCIS. The I-601 is decided by the Department of State. Fourth, and possibly most importantly, I-601A applicants get only one chance for approval. If an I-601A is denied by USCIS, the applicant cannot refile; therefore, it is imperative that the applicant present the most compelling case possible. I-601 applicants can apply for I-601s as many times as they want, so many applicants try to file the I-601 by themselves. Then, if denied, they hire an attorney. This is not the case with I-601A. You must compile a persuasive set of evidence to convince USCIS that your loved one would experience extreme hardship that rises above the level normally expected in family separation situations. There is no appeal or motion to reconsider option for I-601A cases.

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