Provisional Waivers of Inadmissibility I-601A

On the Provisional Waiver

To all applicants for I-601A waivers. With this new year the law changed and those who have still not had their immigrant visa appointment now can remain in the United States while they await the results of their I-601A waiver if their ONLY inadmissibility is for unlawful presence, if they have an Immediate Relative petitioner, and if they meet other criteria.

It is important to understand that if the applicant for the Provisional Waiver (PW) has ANY criminal background that could be seen as a Crime Involving Moral Turpitude (CIMT) or ANY OTHER inadmissibility (fraud, INA 212 (a)(9)(c) inadmissibility, or other) they will not qualify for the PW and MUST still return to their country of processing for the immigrant visa.

This includes cases where one may be able to successfully argue that the other inadmissibility finding would be incorrect.

IF YOU ARE ALREADY OUT OF THE COUNTRY YOU WILL NOT BENEFIT FROM THIS CHANGE.

Some other things to note at this time:

·      The ONLY change to the law at this point is procedural, the law itself is still the same. An applicant still has to go through the I-130, NVC process, and consular interview. The only serious change is the interview is now done AFTER the waiver is processed.

·      If at the consular interview another basis of inadmissibility is found, that will negate the approved PW.

·      Such new inadmissibilities can STILL be argued, however.

·      You CANNOT come back into the United States without inspection after removal or over a year of unlawful presence that you accrued after 1997 and file the PW (meaning if you have been in and out of the US since 1997 talk to a lawyer –

·     IF THE ABOVE DESCRIBES YOU BUT YOU ARE STILL IN THE U.S. DO NOT LEAVE OR YOU MAY FIND YOURSELF STUCK FOR 10 YEARS OUTSIDE THE US WITH NO WAIVER!

·      The medical appointment will still have to occur in the processing country – this means that applicants with tattoos that could be construed as gang related STILL run the risk of a permanent bar without the ability to file waiver.

·      Those with a final order of removal (deportation) DO NOT qualify for the PW! (though you may be able to re-open your immigration court case)

·      If you came across the border and were caught then did not appear for your immigration court hearing you were almost certainly removed in absentia.  This means you CANNOT file the PW.

·      One can file to reopen a removal case but there is the risk it will not be successful, just because one is married to a US citizen does NOT mean the case will automatically be reopened.  This means it is risky to attempt to reopen the case and every case should be evaluated on its own merits.

 

There are other issues that will come to light as this process goes forward, but it is a very exciting change in the law.

Leave a Comment