On March 4, 2013, U.S. Citizenship and Immigration Services (USCIS) began accepting applications for the new provisional waiver. This new form of relief allows the spouses and children of U.S. citizens who entered the country without documentation to apply for a waiver of inadmissibility without having to first depart the United States.
During the first few months of the new application, USCIS either returned or denied numerous applications--even some where the applicants' attorneys felt they were strong candidates for waiver grants.
This was especially common in two circumstances: due to minor mistakes in receipt documentation, and due to the applicant’s criminal history (even minor criminal offenses) and past use of false information when applying for immigration benefits.
For more information about applying for a provisional waiver, see How to Apply for Provisional Waiver of the Three- or Ten-Year Time Bar.
Keep reading for tips on submitting your provisional waiver application in light of USCIS returns and denials.
The instructions to Form I-601A, “Application for Provisional Unlawful Presence Waiver,” ask the applicant to include a receipt from the National Visa Center (NVC) as part of the documents supporting the application. This step has confused many provisional waiver applicants.
Here is what it means: Applicants who have an approved Form I-130, “Petition for Alien Relative” are required to pay an immigrant visa processing fee to the U.S. Department of State prior to submitting Form I-601A. The required documentation includes a receipt from the NVC as evidence that the person has paid the immigrant visa processing fee.
You can print a copy of this receipt immediately upon payment of the fee online, or you can return to the NVC payment page and print a copy if you don’t already have one to include with your application.
If you paid your immigrant visa fee by mail and you don’t have a copy of your receipt to include with the application, you can request that the NVC send you a copy. One way to make this request is to send an email to the NVC at NVCI601A@state.gov. You need to include “Fee Payment Receipt Request” in the subject line as well as your NVC receipt number. You can also make this request by telephone by calling the NVC at 603-334-0700 or by sending a request by mail to the NVC at the following address.
National Visa Center
31 Rochester Ave. Suite 200
Portsmouth, NH 03801-2915
A previous trend was USCIS returning or denying provisional applications where the applicants had criminal history, as explained in USCIS Denying Many I-601A Provisional Waiver Requests Because of Possible Other Grounds of Inadmissibility.
Simply put, USCIS was denying applications if there was a “reason to believe” that the applicant would be otherwise inadmissible for reasons other than for unlawful presence, such as past criminal convictions. This was happening even when applicants have provided detailed information about their past criminal history showing that their past criminal offenses were minor and not grounds for a visa denial.
In addition, USCIS denied some provisional waiver applications when there is “reason to believe” that the applicant provided false or misleading information in order to enter the U.S. or to apply for an immigrant benefit. USCIS focused on situations where applicants have used a false name, false date of birth, or other false information relating to identity.
USCIS has lightened up its approach to such matters, however. It will no longer deny an application outright if it has reason to believe that the applicant is inadmissible under a ground other than unlawful presence. The agency may, however, take that possible ground of inadmissibility into consideration when it weighs the positive and negative factors in the person's case and ultimately makes a discretionary decision whether to grant or deny the waiver.
You should also be aware that, if you have any history of criminal activity or fraud, then a USCIS grant of a provisional waiver is not the end of the story. The U.S. consulate that considers your visa application can still find you inadmissible to the United States.
If you have a criminal history in the U.S. or past instances of immigration fraud but you otherwise qualify for a provisional waiver, as stated in Who Is Eligible for Provisional Waiver of Three- or Ten-Year Time Bar, it is best to consult with an immigration attorney who has recent experience with the new provisional waiver process. Your attorney can help you decide whether you should spend money and time to apply for the provisional waiver.