What to Do If Your Unlawful Presence Provisional Waiver Is Denied

A lot of noise is being made about the new provisional stateside waiver, but many people will still be denied. Read on for more information.

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When the Department of Homeland Security (DHS) announced the new procedure of issuing unlawful presence provisional waivers to the immediate relatives of U.S. citizens, many immigrants who would once have been forced leave the U.S. in order to apply for a waiver along with their green card application were justifiably excited.

Starting March 4, 2013, qualifying immigrants will be able to request a provisional waiver while still in the U.S. (which is why it’s sometimes called the “stateside” waiver). Unlike in the past, they will receive a decision in a matter of months as to whether their unlawful presence in the U.S. will delay their hopes for an immigrant visa for many years, and will be able to wait in the U.S. while their waiver application is being processed. For more information on this, see “Who Is Eligible for Provisional Waiver of the Three- or Ten-Year Time Bar.”

However, despite this “big news,” the truth is that many immigrants who apply to U.S. Citizenship and Immigration Services (USCIS) for this waiver using Form I-601A will receive a denial notice. A provisional waiver is a discretionary form of relief, meaning approvals can be made on a highly subjective basis. It is inevitable that a large number of applications will not meet the burden of proof required by USCIS. Keep reading on for information about what to do if your provisional waiver application is denied.

Common Reasons Why an I-601A Waiver Application May Be Denied

There are many reasons why your I-601A stateside waiver application may be denied. USCIS may issue a denial notice for missing information or errors outright, or it might first send a Request for Evidence or “RFE” asking you to submit additional evidence to support your application -- but then possibly find the follow-up evidence insufficient.

You might, for example, have given information that does not match what you have previously provided to USCIS or another U.S. government agency. If USCIS has "reason to believe" that you are inadmissible to the U.S. for a reason other than your unlawful presence of 180 days or more – such as medical or criminal history or a previous misrepresentation or order of removal on your record – you will not be eligible to file Form I-601A and you will be denied.

As of mid-2013, USCIS was interpreting this "reason to believe" provision extremely broadly, and denying many cases that, with a closer look, should have been approvable. (See a further discussion of this in "USCIS Denying Many I-601A Provisional Waiver Requests Because of Possible Other Grounds of Inadmissibility.") This is why it is important to consult an immigration attorney before you file for a provisional waiver: to help you assemble a complete, accurate, and convincing application on the first try.

A very common reason for the denial of a waiver application is that the USCIS officer adjudicating your case does not believe that a denial would cause an extreme hardship to your U.S. citizen spouse, child, or parent. This is a highly discretionary determination, and USCIS makes its decisions on a case-by-case basis. You will need to submit as much evidence as possible to show that your qualifying relative would suffer if you were denied an immigrant visa.

There Is No Appeal for a Denial of Form 601-A

USCIS has announced that it will provide no appeals process for denials of applications for a provisional unlawful presence waiver. Similarly, the agency will not accept motions to reopen or motions to reconsider. Therefore it is crucial that you submit a complete application the first time around.

You May Submit a New Application for a Provisional Waiver if Your Situation Changes

Even if you receive a denial, you are not barred from applying again if your immigrant visa application is still pending (in other words, 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 to show that denying you admission to the U.S. would cause your qualifying U.S. relative(s) “extreme hardship.” You will need to notify the National Visa Center (NVC) that you intend to reapply for a provisional waiver by emailing NVCi601a@state.gov.

Reapplying might be a good option if there is a change in your situation that shows that your U.S. citizen spouse, child, or parent will suffer because of the denial of a stateside waiver. For example, if your spouse has lost his or her job and needs you to be able to work legally in the U.S. in order to pay the bills, this is new information that would merit filing a new application for a provisional waiver. Or if your parent has developed a medical problem and needs you to be in the U.S. to take care of him or her, you should submit a new application to USCIS using Form I-601A. However, if you will simply be resubmitting the same information, don’t bother (unless you have found an attorney who will help you organize and present it in a more compelling manner).

You May Decide to Attend Your Consular Interview Before Receiving a Provisional Waiver

If you want to continue with the visa application process even after your denial, you may leave the U.S. and attend your immigrant visa interview at a U.S. embassy or consulate in your home country and submit a traditional waiver of inadmissibility application using Form I-601. However, be aware that if this waiver is denied, you risk a lengthy separation from your U.S. family, as you will be barred from reentering the U.S. for three or ten years. To learn more, see Nolo’s article, “Filing Process for the I-601 Waiver.”

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

If your provisional waiver application is denied, you may decide to abandon your immigrant visa application and do nothing at all. Unless USCIS believes you have committed a crime or fraud or pose a threat to public safety or national security, you will not be in any increased danger of being placed into removal proceedings. However, it is always possible, if you are living in the U.S. without authorization, that you may be apprehended or otherwise come to the attention of the immigration authorities and receive a Notice to Appear in Immigration Court. There may be other options available to you at that that time, such as applying for cancellation of removal.

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

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