What to Do If Your Unlawful Presence Provisional Waiver Is Denied

The provisional stateside waiver offers many benefits, but many people will still be denied. Read on for more information.

When the Department of Homeland Security (DHS) first announced that it would issue provisional waivers of inadmissibility due to unlawful presence, many immigrants who would once have been forced to leave the U.S. in order to apply for such a waiver along with their green card application were justifiably excited.

Qualifying immigrants are able to request this 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 on this, see Am I Eligible for Provisional Waiver of the Three- or Ten-Year Time Bar?.)

However, 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 USCIS can approve or deny an application for most any reason.

Some 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.

And if your application wasn't denied outright, but was sent back to you, read What to Do When USCIS Sends Back Your I-601A Provisional Waiver Application.

No Appeal for a Denial of Form I-601A

USCIS provides no appeals process for denials of applications for a provisional unlawful presence waiver. Similarly, the agency will not accept a request to reopen a case or a request that it reconsider its decision. 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 from USCIS, you are not barred from applying for a provisional waiver 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."

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 a stateside waiver.

For example, if your U.S. citizen 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 U.S. lawful permanent resident 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 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 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, 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 Relief or Do Nothing

If USCIS denies your provisional waiver application, you may 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 the immigration authorities and receive a Notice to Appear 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.

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