One of the biggest misconceptions is that a waiver is a waiver and that’s not true. There are many different types of waivers and each one is specifically for some specific issue. We have seen a lot of people who try to do things themselves and will submit what they think is what the waiver that they need but they end up getting denied.
In order to avoid all that, it’s better to get a legal analysis on your case specifically. A lot of times people think that maybe they don’t need a waiver. They think their case is easy but it’s really not. You never know what could trigger a ground of admissibility. Having a consultation with an attorney and having an attorney walk you through the process and help you through the process really and truly is invaluable.
What is the I-601A Provisional Waiver?
The provisional waiver came around in 2016. In the immigration world with general rules and laws that date back decades, it’s pretty new. This provisional waiver is still new in the sense that it only came around within the last decade.
In the past, if people had unlawful presence for more than six months, they were deemed inadmissible. Unlawful presence could be from entering the U.S without permission or entering lawfully but overstaying the time allowed.
Especially for those people who were going through the consular process, most of the time they didn’t find out that they were inadmissible until they went to their interview.
They created this provisional waiver for those people who specifically are in the US already. Most of the time, the people who are going to be eligible for this waiver are those who are going through the consular processing. This means that they have to return to their home country to actually get their interview done and get approved outside of the US.
This isn’t for people who are adjusting their status in the US. It’s for those who are eventually going to have to leave and it’s for people who are already in the US or still in the US after having been admitted lawfully or having entered without permission.
Why is it Provisional?
The reason that it’s called the provisional waiver is that it’s a temporary grant. It’s not final until the person has been approved at the consulate. It is approved before you leave but the consular officer has the final say. At the consular interview, that officer could revoke the approval. Normally, it’s going to happen if there’s any other ground of inadmissibility.
How do you qualify for the I-601A Provisional Waiver?
There are a lot of factors that go into it because each case is different and each one requires an individual analysis just because no two cases are the same. What made somebody else’s case strong may not be the strongest point for you but you might have something else that somebody else doesn’t. It’s not really a cookie-cutter solution. Each one is done individually and each one is determined for the strength of that case.
It does not apply to people who potentially have been coming in and out of the U.S without permission staying for certain times and then leaving. It may not apply if people are entering lawfully and they’ve stayed long times then left and came back. These are all things that need to be analyzed and determined before filing any kind of waiver. It may sound like it applies to you but it may not in the long run. You might think you don’t need it but it turns out you do.
If somebody in the US has more than six months of unlawful presence and they are going through a consular process, this waiver could be available to this person. This particular waiver only cures one ground of inadmissibility and that’s the unlawful presence.
If there are any other issues such as misrepresentation or fraud, this waiver will not cure any of those. This waiver should not be requested if you have other issues as well because this waiver is supposed to be for one thing and one thing only and that’s for that unlawful presence in the US.
Right before the applicant leaves for their actual interview, we want to make sure that that person has a provisional waiver already approved. There is a specific timing that needs to be taken into consideration.
One of the keys as well to this waiver is that you have to have a qualifying relative. A qualifying relative can only be a resident or citizen spouse or parent. It cannot be children. A lot of times, people find themselves in a difficult situation where they don’t qualify for this waiver because they don’t have a qualifying relative.
You also have to be able to prove that that qualifying relative, your US citizen or resident spouse or parent, is going to suffer extreme hardship without you.
What does extreme hardship mean?
It is going to be determined on a case-by-case basis. Another reason why you definitely want to have an attorney helping you with this is that no two waivers are the same. A lot of them may follow general types of patterns but none of them are the same because everybody’s life is different. Extreme hardship to your spouse or parent who’s a resident or a citizen can be proven in multiple different ways depending on the situation.
If you have older parents, it’s going to take into consideration the fact that they need help. They need additional care, they may have health issues, or you might be their financial provider. It can also be the spouse for these exact same reasons.
If somebody has extreme physical conditions or needs, certain types of treatments or medications can not only be physical but it can be mental and emotional as well. If people are suffering from anxiety or depression, if there’s medication being taken, if somebody has a severe financial need and that person definitely needs the help of their partner or child.
Wait times for I-601A Provisional Waiver
Another key thing about the provisional waiver is that it takes a really long time to get approved right now. Once the pandemic started, it was one of the most affected wait times. Before COVID, it might have taken nine months to get one of these waivers approved. Now we’re sitting at two years.
You don’t want to file something that you think you qualify for without getting an analysis only to find out two years later that you didn’t need it or that it was the wrong type. Always get legal advice to see if you qualify for a provisional waiver and if you do, determine the best strategy.
