NEW Provisional Waivers Allow Illegals to File Waivers in U.S. (Part 2)

Feb 03, 2013 News

Attorney Gail Seeram, [email protected],
1-877-GAIL-LAW

Beginning March 4, 2013, certain immediate relatives of U.S. citizens who are physically present in the United States will be allowed to request provisional unlawful presence waivers prior to departing from the United States for consular processing of their immigrant visa applications. Effective March 4, 2013, the new law will benefit the following individuals:
(1) crewman (or jump ships) who married US citizens, but do not have the benefit of Section 245(i);
(2) people who entered the US without inspection (EWI), who married US citizens, but do not have the benefit of Section 245(i); and
(3) people who entered the US on a K-1 fiancée visa, but did not marry the American who petitioned him or her, but instead married a different American; and
(4) immediate relatives of U.S. citizens with an approved Form I-130 found ineligible to adjust status in the U.S.
Will I be able to benefit from the NEW “provisional unlawful presence waiver” process if I entered with a fraudulent passport or have past convictions?
This provisional waiver applies only to unlawful presence that triggers the three and ten year ban from returning to the U.S. If a person has other immigration violations, such as fraud (entry with another’s passport), criminal convictions, and the like, which also require a waiver, the person would have to depart the U.S. and file the waivers after an interview at the U.S. Embassy and wait abroad for the final decision.
Can an immigrant already living outside the U.S. benefit from the NEW “provisional unlawful presence waiver” process?
Unfortunately, individuals who are already outside of the United States must pursue a waiver of inadmissibility through the current Form I-601 process. The NEW provisional unlawful presence waiver process will remain available only to those individuals who are currently in the United States and will be departing for consular processing abroad.
How will immigration decide whether to approve or deny my “provisional unlawful presence waiver”?
For the waiver to be approved, there must be an extreme hardship determination based on a showing of extreme hardship to a U.S. citizen spouse or parent. Documentary evidence to prove the “extreme hardship” must be submitted with the waiver form, Form I-601A.
Can an immigrant with TPS benefit from the NEW “provisional unlawful presence waiver” process?
TPS applicants who are immediate relatives of U.S. citizens can participate in the provisional unlawful presence waiver process if they are pursuing consular processing of an immigrant visa abroad.
When can I file the NEW “provisional unlawful presence waiver”?
Once you obtain an approved Form I-130 then a request for the unlawful presence waiver can be filed in the U.S. by using Form I-601A and you will be permitted to remain in the U.S. during the adjudication or decision-making process. The filing fee for Form I-601A will be $585.00.
How old do I have to be to file under the NEW “provisional unlawful presence waiver” process?
Individuals must be 17 years or older request a provisional unlawful presence waiver.
What happens if I go through the NEW “provisional unlawful presence waiver” process and my waiver is denied?
The individual may depart the U.S., attend the visa interview at the Embassy and file the waiver under the current process and wait abroad for a decision on the waiver. Also, the individual may appeal or re-file the waiver is new evidence will be submitted. If the individual wants to remain the U.S. after a denial on his provisional unlawful presence waiver then they may face removal proceedings before the immigration court.
Before deciding to proceed with the NEW “provisional unlawful presence waiver” process, speak with an experienced immigration lawyer who can assess your unique situation and conclude you will benefit from this new law and new process.

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NEW Provisional Waivers Allow Illegals to File Waivers in U.S. (Part 2)

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