The provisional waiver (I-601A) assists noncitizens who have accrued unlawful presence in America to seek forgiveness for the illegal stay while in the US. Obtaining the provisional forgiveness eliminates the need for you to leave the US to apply for the unlawful presence waiver in your home country. Applying for the waiver abroad can lead to long delays and possible separation from family if denied before the matter is adjudicated. Also, the waiver could be denied, leading to three to ten years of separation from loved ones due to illegal presence inadmissibility.
Denying the provisional waiver can be a massive setback to your green card application. What should you do if the waiver application is refused? You cannot appeal the verdict. However, you can submit a fresh I-601A with more substantial evidence proving your eligibility for unlawful presence forgiveness.
Understanding Provisional Waiver I-601A
I-601A, or provisional unlawful presence waiver application, is an immigration form. It helps foreign nationals who have accumulated illegal stay while awaiting a green card to avoid up to ten years of inadmissibility after departing the US for an LPR interview at the US consulate or embassy in their home country.
Before the new waiver, foreigners who had accrued unlawful presence while awaiting their green card application were required to return to the country of origin to apply for a waiver. This procedure took months and sometimes years. The lengthy separation caused many families severe hardships.
I-601A, introduced in 2013, was a relief to these individuals because they could apply for the waiver and adjudicate the application while in the US, eliminating the risk of lengthy separation from loved ones who are American citizens or LPRS. By the time the foreigner leaves the country for the green card interview at the foreign US consulate, they have the forgiveness for the unlawful presence. That way, there is no risk of three to ten years of inadmissibility for the illegal stay or months or years of awaiting a decision on a waiver application.
You must be 17 or older, residing in California at the time of application, and have an active immigrant visa application to qualify for the provisional waiver. Besides, the immigration benefit is available to immediate relatives of American citizens or certain LPRs. One primary condition for the waiver is that the accrued unlawful stay is one of the reasons you risk inadmissibility after departing the country. The I-601A immigration scheme is designed to avoid the three to ten years of inadmissibility that foreigners who overstay their visas face after leaving the country. Usually, when you overstay your visa for one hundred and eighty days, you will be barred from reentry for 36 months. If you accrued 365 or more days of unlawful presence, you risk up to 120 months of inadmissibility upon exiting the US for your consular interview.
The provisional waiver differs from the conventional I-601 inadmissibility waiver, focusing on inadmissibility whose sole reason is unlawful presence. I-601 focuses on several grounds of inadmissibility, like health, misrepresentation, or criminal record, and is filed after being barred from entry, while I-601A is filed before you depart the US.
Reasons for Provision Forgiveness Denial
Denying an I-601A application severely hurts your pending immigrant visa application because you cannot travel for your interview due to the risk of inadmissibility. The US Citizenship and Immigration Services (USCIS) will not accept an appeal for the process or any request to reconsider their verdict. You can address the denial by filling in a new form and avoiding the mistakes you made in the initial application, which led to the rejection. However, you cannot correct these mistakes and submit a stronger provisional waiver request without understanding the reasons for the initial rejection.
USCIS sends you a denial notice citing reasons for rejecting your application. Review the notice yourself to understand the reasons, or even consult an experienced immigration attorney to evaluate the notice together and use it to guide you in your new application. The common reasons for provisional waiver rejection are:
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Failure to Sufficiently Demonstrate Your Family will Encounter Extreme Hardship Upon Lengthy Separation
If, as an applicant, you provide insufficient evidence to show that your immediate family members who are American citizens or LPRs will undergo severe hardship because of separation, USCIS will reject your application. Extreme hardship is a legal standard that must be proven during a waiver application. The hardship those you leave behind will face must transcend the usual emotional suffering and challenges families face after separation. Mere emotional distress or inconvenience cannot convince the agency to grant a waiver. You must prove that if separated, the family members will also be forced to depart America and join you abroad.
You will require medical reports showing that a qualifying relative has a medical or mental condition that will become worse without your presence or that the medical care they need is not available in your mother country. You can submit reports, statements, or testimony from the medical provider to support the severity of the medical problem.
Also, you should prove that the qualifying relative will suffer severe financial difficulties or loss of income with your absence. You should submit your pay stubs, tax returns, and employment status verification to prove this element.
Again, you can cite that the home country is unstable and unsafe to travel to. Expert reports, lack of critical services, and documented violence can prove the conditions in the country.
Submitting these and other documents can prove extreme hardship. Therefore, if the grounds for rejection were insufficient evidence of extreme hardship, you should gather more evidence to strengthen your application.
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Weak or Missing Proof
Every assertion you make in your waiver application must be backed by compelling evidence. You will require affidavits, reports on the condition in your country, financial statements, and medical records to support your claims. If you fail to submit some evidence or weak proof, your application will be thrown out. Words alone will not compel USCIS to approve your provisional waiver request.
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Not Addressing Grounds of Inadmissibility
The provisional waiver solely extends forgiveness for accrued unlawful stay. When you have other grounds for being denied entry after departing for your home country, like a criminal record, misrepresentation in prior applications, existing deportation orders, health concerns, or public charge issues, the agency will deny your I-601A application, as it only offers forgiveness for unlawful presence. You will seek separate waivers if you have other problems that make you inadmissible.
Before you submit your application, your immigration lawyer must review your immigration background and history to ensure that there are no other issues besides unlawful stay that bar you from entry to avoid an unexpected application denial.
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Provisional Waiver Ineligibility
Apart from the primary reasons for denial, your waiver application could be rejected because you do not have a qualifying relative, you have a case pending in the immigration court, or you submitted the wrong waiver forms.
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Procedural Failures
Another reason for denial is errors in the application process. Submitting incomplete I-601A forms, giving inconsistent information, making weak legal assertions, or making typographical errors can lead to application rejection. Even the slightest mistakes can raise concerns among the adjudicating officials, leading to a denial. Therefore, you should have your attorney fill out these forms because they have the experience and will avoid the procedural failures that will likely occur when you fill out the forms in person.
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The Discretion of the Waiver Adjudication
Your application could be denied even after submitting the requisite information and evidence. USCIS officials have the discretion to grant or deny your application based on various factors. Factors like extreme hardship are objective and open to the officer’s interpretation, meaning the final decision depends on the officer’s understanding of the application. So, you should present strong and compelling evidence that is legally persuasive to improve your chances of a favorable verdict. Your immigration lawyer should prepare the forms and make the legal assertions to better your chances.
Action to Take After Receiving a Provisional Waiver Denial Notice
A rejection of the I-601A application does not mean you can reapply if the immigration visa decision is still pending. You cannot appeal the procedure or ask USCIS to review its decision. The steps you should take when you receive the rejection notice will influence your future applications.
Analyze the Notice of Rejection
USCIS always sends a notice comprehensively detailing the reasons for rejecting your application. After receiving the notice, your first action is to review it, as it is a diagnostic tool that helps you establish the reason for waiver rejection. When you understand the reasons, you will be more informed when making a new application, deciding on your next strategy, or seeking legal guidance. The notice is a roadmap highlighting the application sections you must strengthen.
Attentively review the areas cited for insufficient evidence so that you can gather new evidence for these areas. Consider the notice as a detailed assessment of your I-601A shortfalls and use it to file a new request with high chances of approval.
Partner With a Competent Immigration Lawyer
A provisional waiver is discretionary, and the application process is complex. Given the complexity of immigration law, it is critical to consult with a qualified immigration attorney following a waiver denial.
Partnering with the right attorney is crucial because they will explain the legal terms used in the notice that you do not understand. Again, they will spot the weaknesses in the initial I-601A and look for any other inadmissibility reasons besides unlawful presence that could have led to the unexpected rejection. Your attorney will review your immigration history, identify any grounds of inadmissibility beyond unlawful presence, and guide you on the next course of action. Your options include submitting a new application, seeking forgiveness through an I-601 inadmissibility waiver, or seeking forgiveness through other immigration benefits like asylum or Temporary Protected Status.
Similarly, a competent attorney will help with evidence collection and submission. They have been doing this long time, so they understand the documents you should submit for a compelling claim. If the attorney argues the legal aspects of the application compellingly, chances are the new application will be approved.
In some instances, a denial of the provisional waiver may result in the initiation of removal proceedings, depending on the applicant’s specific circumstances. Therefore, the attorney will help you prepare for the proceeding and represent you in contesting the deportation.
Instances When USCIS Can Forward Your File to Immigration and Customs Enforcement (ICE) for Removal Proceedings
It is normal to be concerned about USCIS sharing your personal details with ICE, triggering a deportation proceeding or detention placement after a provisional waiver rejection. This rarely happens, but it is possible. USCIS is unlikely to submit your file to ICE if your only problem with immigration is an unlawful stay. The agency has come out to clarify that it will not disclose personal information of provisional waiver applicants to the ICE, which the government agency mandates to apprehend those violating immigration statutes. The only circumstances under which USCIS will share information with ICE are if the applicant has a criminal history, engaged in fraud, or threatens public or national security. However, the agency can amend the policy at any time.
When submitting an I-601A application, you must evaluate your immigration history and record honestly because some of the information could cause USCIS to reveal your details to ICE, resulting in detention or issuing a notice to appear (NTA), initiating a deportation hearing. If you are in the country unlawfully, are a repeat offender, have a history of criminal gang affiliation, or have submitted false information in your forms, you should consult a proficient immigration attorney before sending your application to USCIS.
However, IF ICE has already issued you an NTA after a provisional waiver denial, you should ask your attorney to request the immigration court for a deportation cancellation. The conditions you must satisfy to qualify for the cancellation are:
- Continuous physical presence in California or the US
- Proof of outstanding moral character
- Deportation would cause extreme hardship on a qualifying relative
If you meet these qualifications, your attorney can cancel the deportation. When cancellation fails and the deportation hearing starts, the attorney will represent you for a fair verdict.
Address I-601A Denial
You can explore various pathways after your I-601A request is denied. How you address the problem hinges on the reasons for application rejection.
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Provisional Waiver Reapplication
Your immigration lawyer will recommend reapplying for a waiver if USCIS has not barred you from submitting a fresh request. Many immigration attorneys will recommend this course of action, especially if your LPR application or other immigrant visa request is pending.
Presenting a fresh application is encouraged, particularly if the circumstances that led to the initial rejection, like insufficient evidence of extreme hardship by a qualifying relative, have changed. For instance, when your spouse, an American citizen or LPR, loses a job after a denial, your ability to continue working is crucial in preventing extreme hardship, so the agency will likely grant a new application.
Before reapplying, allow your attorney to evaluate the denial notice and offer guidance. If the rejection was due to missing, insufficient, or procedural failures, you should reapply, but this time around, with the help of a professional. Nevertheless, do not resubmit the initial evidence. Gather new evidence or strengthen the existing evidence to improve your chances.
An experienced attorney is your best chance at strengthening a new request. The attorney will address the reasons for the rejection, gather more substantial evidence to demonstrate extreme hardship, give detailed and compelling legal assertions, and ensure honesty and transparency when filling out the forms. Therefore, before reapplying, seek legal guidance.
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Pursue Consular Processing or I-601 Waiver
If a new application is not feasible or is undesired, you can explore other waiver alternatives, like the inadmissibility waiver. When seeking an I-601 waiver, you must leave America for your mother country to attend the immigrant visa interview. If the meeting at the American consulate deems you inadmissible because of unlawful presence or other inadmissibility grounds, your attorney will suggest you file an I-601 waiver at the embassy. This waiver type covers multiple inadmissibility reasons in addition to the unlawful stay. So, if the existence of other grounds for inadmissibility was why you opted out of a provisional waiver, the inadmissibility waiver is an excellent alternative to seek relief.
However, you should know the waiver comes with multiple risks that the provisional waiver attempts to fix. One of the risks is that you risk lengthy separation from your loved one after the waiver denial. You could be rendered inadmissible for 36 to 120 months, contingent on the duration of the illegal stay. The provisional waiver was designed to prevent these families from experiencing severe hardships. When exploring this option, your immigration attorney must explain all the risks and consequences of a waiver denial. Also, it should be a last resort after exhausting all possibilities for a provisional waiver reapplication.
Find an Experienced Immigration Attorney Near Me
Provisional waivers are discretionary, meaning you must build a strong and convincing argument for USCIS to grant the forgiveness. A competent legal representative can review your immigration record and background for guidance.
At California Immigration Attorney, we will gather evidence and complete the forms for you to increase the chances of approval. Even if the I-601A is rejected, interpret the reasons for denial, find inadmissibility grounds, and explore alternatives, including reapplication to overcome the denial. Call us at 424-789-8809 to evaluate your situation.