What to Do If Your Unlawful Presence Provisional Waiver Is Denied

The provisional waiver of inadmissibility due to unlawful presence, which is relatively new, was a huge relief to many foreign nationals awaiting green cards. Instead of not only having to leave the United States in order to complete their green card application, but also request an unlawful presence waiver from a U.S. consulate, thus risking a bar of 3 or 10 years before returning, they could potentially request this waiver while still in the United States. What's more, they could receive a decision in mere months, wait in the U.S. while their waiver application was being processed, and leave for their consular interview only after receiving assurance that the waiver was approved.

However, the truth is that many immigrants who apply to U.S. Citizenship and Immigration Services (USCIS) for this waiver on Form I-601A will receive a denial notice. A provisional waiver is a discretionary form of relief, meaning USCIS can approve or deny it for almost any reason. And some applications will not meet the burden of proof required by USCIS. (See also Am I Eligible for Provisional Waiver of the 3- or 10-Year Time Bar?)

Keep reading for information about what to do if your provisional waiver application is denied.

You Can't Appeal USCIS Denial of an I-601A Provisional Waiver

USCIS provides no appeals process for denials of applications for an I-601A provisional unlawful presence waiver. Similarly, the agency will not accept a request to reopen a case or reconsider its decision. Therefore, it is crucial to submit a complete and convincing application the first time around.

Many I-601A denials happen because either:

• the hardship explanation is too general
• there's not enough proof like medical or financial documents, or
• there are differences between the information given in the waiver request and that found on earlier-filed immigration forms.

If the story does not clearly show how the U.S. family member will suffer without the applicant, USCIS is more likely to deny the case.

You May Submit a New I-601A Waiver Application If Your Situation Changes

Even if you receive a denial notice from USCIS, you are not barred from applying for a provisional waiver again if your immigrant visa application is still pending (in other words, if no decision has yet been made on it).

You may submit a new provisional waiver application (with the same fees you paid the first time) if:

• you have new information to support your request, and
• you can show that denying you admission to the United States would cause your qualifying U.S. relative(s) "extreme hardship."

Reapplying might be a good option if there is a change in your situation that shows that your U.S. qualifying relative will suffer because of the denial of the waiver.

In immigration cases, "extreme hardship" refers to challenges that go beyond the typical emotional or financial difficulties that families experience when separated. USCIS considers factors such as serious medical conditions requiring the applicant's care, major disruptions to education or employment, significant financial losses, unsafe conditions in the home country, and the emotional impact on family members.

For example, if your U.S. citizen spouse has just lost their job and needs you to be able to work legally in the United States in order to pay the bills, this is new information that would merit filing a new application for a provisional waiver. Or, if your U.S. lawful permanent resident parent has developed a medical problem and needs you to be in the U.S. to provide care, that too could justify submitting a new provisional waiver application.

However, if you will simply be resubmitting the same old information, don't bother (unless you have found an attorney who will help you organize and present it in a much more compelling manner).

You Could Attend Consular Interview Before Receiving a Provisional Waiver

If you want to continue with the visa application process even after your waiver denial, you could decide to take a chance on forging ahead regardless; that is, leaving the United States and attending your immigrant visa interview at a U.S. embassy or consulate in your home country. At that time, you would submit a traditional waiver of inadmissibility application to the consulate using Form I-601. The legal grounds are the same, but ideally you would augment your documentation to make your case even more convincing this time around.

This might work to salvage your immigration application; but it carries significant risk. If the consulate denies you the waiver, you could face a lengthy separation from your U.S. family. You will likely be barred from reentering the United States for 3 or 10 years, depending on whether your unlawful stay was between 180 and 365 days or over 365 days. (I.N.A. Section 212(a)(9)(B).)

You May Decide to Apply for Another Form of Immigration Relief or Do Nothing

If USCIS denies your provisional waiver application, you could decide to abandon your immigrant visa application and do nothing at all.

However, if you are living in the United States without authorization, it is possible that you will be apprehended or otherwise come to the attention of U.S. immigration authorities (such as Immigration and Customs Enforcement or ICE) and receive a Notice to Appear (NTA) in Immigration Court. There might be other options available to you at that time, such as applying for cancellation of removal.

If you think you might qualify for another form of immigration relief, such as asylum or Temporary Protected Status (TPS), consult an immigration attorney, who can best advise you as to what you should do next.

When USCIS May Refer Your Case to ICE for Deportation

You might be worried that your personal information will be used by USCIS in order to place you into detention or in removal proceedings in Immigration Court if your provisional waiver application is denied. This is improbable, but it is not impossible. If your case merely involves unlawful presence in the United States, it is unlikely that the information you submit to USCIS will be used against you in this way.

USCIS has stated that it will not share information submitted on Form I-601A with Immigration and Customs Enforcement (ICE), the agency tasked with apprehending violators of immigration law, unless it involves a person with a criminal history or fraud violations, or one who poses a threat to national security or public safety. But USCIS could change this policy at any time.

Take an honest look at your situation to determine whether your background might raise flags and eventually cause you to be detained or deported. Have you ever provided false information on a government application? Do you have multiple criminal convictions or a history of gang association? Have you been a member of a group that has been linked to terrorist activities?

If so, consult with an experienced immigration attorney who can advise you on your best course of action before you submit your information to USCIS.

Getting Legal Help

In any type of case that involves proving discretionary relief, creating a convincing argument before U.S. immigration authorities can require much more than just filling out forms. An experienced immigration attorney can help evaluate your situation, prepare arguments in the form of a cover letter or legal brief, accompanied by supporting evidence, and prepare you for any in-person court appearances or interviews before U.S. government officials.