What to Do If Your Unlawful Presence Provisional Waiver Is Denied

The provisional or stateside waiver offers many benefits to foreign nationals who have lived in the U.S. without permission and wish to seek lawful permanent residence, but many people will still be denied. Read on for more information.

By , Attorney · Temple University Beasley School of Law

The relatively new provisional waiver of inadmissibility due to unlawful presence was a huge relief to many foreign nationals awaiting green cards. Instead of having to leave the U.S. in order to complete their green card application, request an unlawful presence waiver from a U.S. consulate, and risk a bar of three or ten 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, and wait in the U.S. while their waiver application was being processed.

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. (Also see Am I Eligible for Provisional Waiver of the Three- or Ten-Year Time Bar?.)

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

No Appeal for a Denial of Form I-601A Provisional Waiver Request

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.

You May Submit a New I-601A Application for a Provisional Waiver 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
  • 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.

For example, if your U.S. citizen spouse has just lost their 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 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 Might Decide to Attend Consular Interview Before Receiving a Provisional Waiver

If you want to continue with the visa application process even after your waiver 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 then submit a traditional waiver of inadmissibility application to the consulate using Form I-601.

However, be aware that if this waiver is denied, you risk a lengthy separation from your U.S. family. You will likely be barred from reentering the United States for three or ten 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, it is possible, if you are living in the U.S. without authorization, that you will be apprehended or otherwise come to the attention of U.S. immigration authorities 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. In most cases, this is improbable, but it is not impossible. If your case merely involves unlawful presence in the U.S., 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.

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