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Blog

How to File the Provisional Unlawful Presence Waiver (Form I-601A)

Being with your family is probably the most important thing to you and your spouse. It is for me. Maybe we kid about needing to get away from our children and spouses, but imagine having to spend many months or even years away from your spouse, who is waiting to reunite with you and the rest of the family back in another country, say Mexico. You would lose half (or maybe even all) of your household income, his emotional support and his all-important role as the father of your children.

And on the other side of the coin, imagine not being able to see your children for possibly ten years! As a mom of three, that is unfathomable. It’s no wonder that so many of my clients opt to remain in status quo, that is, to live in the U.S. without a green card or even a permit to legally work here so they can remain with their families.

Thankfully, the recently implemented provisional unlawful presence waiver addresses this situation, and as an immigration lawyer who sees the above-referenced scenario at least several times a week, there is definitely an increase of people wanting to take advantage of the provisional waiver and legalize their statuses to provide better lives for themselves and their families.

So, if you fall in this category of families, what do you do?

STEP 1. FILE THE I-130 PETITION, PETITION FOR ALIEN RELATIVE

If you haven’t filed your I-130 Petition for your spouse, you must do that immediately. But if your spouse has any previous removal/deportation issues, any criminal charges or convictions, wait! These issues need to be fleshed out first before you file anything. Why is this relevant? Because the provisional waiver only waives unlawful presence in the U.S. and nothing else. So it doesn’t waive crimes, and it doesn’t waive previous removal orders.

If you’ve already filed and your spouse has these issues, it’s ok. Your case needs to be evaluated by an experienced immigration attorney. You cannot and should not do it alone. It’s too risky, too important, and too costly to not have a professional guide you if you think there are any issues in the case whatsoever that could prevent your spouse from taking advantage of the provisional waiver.

The I-130 Petition takes USCIS approximately 6-8 months to approve. Once you have an approval, the case will then be sent to the National Visa Center (NVC). The immigrant visa processing fee will then have to be paid and after you have paid this fee, you must notify the NVC that your spouse will be applying for the provisional unlawful presence waiver.

STEP 2. NOTIFY THE NATIONAL VISA CENTER

Notifying the NVC that you are applying for the provisional waiver is important because if you don’t, an interview might be scheduled abroad and cause delays in the processing of the case. So, notifying the NVC will avoid delays. At this step, you will also have to pay the National Visa Center fee bills.

STEP 3. FILE FORM I-601A – PROVISIONAL UNLAWFUL PRESENCE WAIVER

Once NVC has been notified, your spouse needs to file Form I-601A with USCIS. Along with this form, you and your spouse MUST provide supporting documents that you (the U.S. Citizen spouse) will suffer extreme hardship if he is barred from entering the U.S. for three or ten years. Most of my clients have more than one year of unlawful presence in the U.S., and therefore, would trigger the 10-year bar. The 3-year bar is triggered if there is unlawful presence of 180 days or more (but less than a year).

What is extreme hardship?

I will have to do another post about this in the near future, but extreme hardship is more than just “ordinary hardship”. USCIS will look to the following support that your spouse might provide to you and your family to determine whether it would be extreme hardship for him not to return to the U.S. for ten years, assuming the 10-year bar: financial support, emotional support, and physical support, for cases where there might be medical issues.

You must “go all out” here to show USCIS that you will suffer extreme hardship if your spouse is barred from coming back to the U.S. for 10 years. Many times, when a husband and wife are in my conference room, I will ask the wife to just imagine if her husband were not around for ten years. What would happen to the house/apartment? Who would pay all the bills or even half of them? Would you have to get a 2nd job? Who would have to take care of the children if you did? If the she suffers from anxiety or depression, I ask whether the condition would worsen if her husband were barred. If there are any medical issues, who would care for the children if the medical issues worsened or if hospitalization were required.

These are just some of the issues to discuss and provide documentary evidence for to show extreme hardship. While children are not qualifying relatives (we cannot show the children’s extreme hardship, only the spouse’s), the children’s hardship can be imputed to the U.S. Citizen spouse. For example, the children’s care would fall 100% on the U.S. Citizen spouse, with no help from the husband, which would in turn result in an increased level of physical hardship for the spouse, anxiety, depression, etc.

So the takeaway here is do not skimp on the evidence. Extreme hardship is the whole point of Form I-601A so do not be shy of baring it all, with all the supporting documents to prove it.

STEP 4. GO TO THE IMMIGRANT VISA INTERVIEW ABROAD.

Once USCIS approves Form I-601A, your spouse will then have to travel to his country for his visa interview. In this example, it’s Mexico, so the interview would be in Ciudad Juarez. If your spouse has no other issues regarding whether he is admissable to the U.S., then the Officer will approve the granting of his immigrant visa, and your spouse will be able to return back to the U.S. as an immigrant.

In addition to filing the I-130 Petition and preparing the all-important supporting documentation for Form I-601A, you must also make sure to keep up with the requirements for the visa processing with the National Visa Center. There are specific instructions for this process in a blog post I wrote entitled ‘I-130 Petitions = Family Unity: Steps to Petition for Spouse Abroad’, so take a look at that for guidance.

Filing under the provisional unlawful presence waiver requires multiple coordinated steps and lots of homework on your part with regard to getting the extreme hardship evidence in order. I hope this blog post has been helpful to you. Please share your comments and questions with me to let me know how it’s going.

Related posts:

  1. Watch Out for School Buses and School Zones
  2. Citizenship Day 2019
  3. Get Peace of Mind with Gardner & Mendoza
  4. One Good Reason You Need to Lawyer Up

Filed Under: Immigration Blog Articles

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Well, hard to believe… job done! I’m frank to admit I had no idea that it would be so involved compared to 10 years ago when I did the renewal myself. Happily I was fortunate enough to find the best people to help get it done this time. When I was a working stiff it was mostly as a field guy in sales & marketing. High tech communication in those days was a pay phone in customers’ lobbies, so someone back in the office skilled in dealing w/problems was absolutely essential when I couldn’t be contacted. Most of those who supported me that way were good at what they did, some were outstanding. None were better than you!! This tedious & sometimes worrisome process would have been unbearable without your keeping it, & me, on track. So we want to extend our thanks to you and Radlyn. Hoping for Gardner & Mendoza to continue the good work for many years to come. - Anonymous
Gardner and Mendoza Law Firm is a great law firm no matter what kind of situation you may be in! For example I had court today, John Gardner, my attorney represented me today and got the charged dismissed totally the first time we both appeared in front of the judge in Virginia Beach Traffic Court. He uses every bit of knowledge he can to help you get the best results!! He also works very well with Latinos! They have a Spanish speaking person in their office at all times!! - Sebastian
My husband and I had a great experience with Mrs. Mendoza. She provided excellent information and a sense of urgency with every step of our immigration process. Her team was always supportive in getting us the information we needed throughout the whole process. This legal firm also treats their clients with the highest levels of respect. In all of Virginia I would say that the Gardener & Mendoza team is the best recommendation for same sex immigration cases and for immigration cases in general. It was a pleasure to work with them. - Anonymous
I Highly Recommend Radlyn Mendoza, An Excellent Immigration Lawyer. My wife and I were very worried about my wife’s immigration and legal status. We were quite impressed with Attorney Mendoza during our initial consultation. She proved to be a smart, knowledgeable, and very capable immigration attorney. She and her staff were very helpful and responsive to all of our requests. Kudos to her and staff, especially Leesa, for successfully handling our case. Thanks for a job well done. - Thomas and Cheong W.
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