What does the Provisions Waiver mean?

Recently, the U.S. government finally approved the provisional waiver, with the corresponding procedures to follow in the coming months.  Under the previous 601 waiver policy, individuals who entered the country without inspection could not apply for permanent residence without leaving the country during the duration of the waiver process.  The new provisional waiver has been applauded by immigration activists throughout the tri-state area; and immigration lawyers in NJ, NY and throughout the country see the new act as an important step in providing status to law abiding immigrants with family in the US. 

Who can apply for the Provisional Waiver? 

First, in order to be eligible for the provisional waiver, one must be the immediate relative of an individual who is a citizen of the United States.  Under US immigration law, US citizens may petition for the following immediate relatives:

1.      Spouses;

2.      Unmarried children under the age of 21;and

3.      Parents (so long as the U.S. citizen is 21 or older). 

Second, one must have entered the country without inspection (or entered the country without coming through a port of entry) and stayed for over 6 months.  The overwhelming majority of this group of people crossed into the United States through the border with Mexico.  For individuals who have entered into the country legally and overstayed their visa, they can apply for a green card and stay in the country without having to apply for a waiver. 

However, a person cannot apply for a provisional waiver if he or she in inadmissible for a reason other than the fact that they were unlawfully present in the US.  This primarily applies to those who have a criminal conviction that necessitates a waiver of its own.

What is the 601A waiver application and what must it show? 

USCIS will release a new application called at 601A waiver.  This is a complex procedure that is best handled by a provisional waiver lawyer, with a background in the previous 601 waiver application process.  Much like the conventional 601 waiver, the applicant must show that the rejection of the waiver application will result in extreme hardship to his or her US citizen immediate relative (note that the current USCIS statement on the provisional waiver states that the hardship must be shown on a US citizen spouse or parent only; so it is not clear whether hardship can be shown to children). 

What are the procedures?

Though the exact procedures will be clear in the coming weeks, there are certain general features that are known.  First, the applicant will apply for a green card though their immediate relative, and send the application to the embassy in their country of origin. Then, the applicant will submit the 601A waiver application.  Next, the applicant will inform the National Visa Center that he or she is applying for the provisional waiver from USCIS.  Finally, the applicant will leave the country in order to appear at the visa interviewin their home country’s US embassy.   While there is still much to be decided, the new rule will relieve the burden on countless number of immigrants who have immediate relatives in the US but are living without status.