I-601A Waiver Attorney: Provisional Unlawful Presence Waiver Process FAQs (Continued 2)

21. Where should I file my I-601A provisional waiver application?

The Application for Provisional Unlawful Presence Waiver, Form I-601A, should be filed only with USCIS. The filing fees will be $670 (including $585 for the waiver’s filing fee and $85 for biometrics processing).

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22. Is it possible to waive the biometrics or filing fees for an I-601A waiver application?

No. You need to pay for the biometric ($85) and filling fees ($585) for your I-601A provisional waiver application. In the case of a withdrawn Form I-601A, USCIS will not refund the filling fees because USCIS has already undertaken steps to adjudicate the case.

DHS has made it clear that a Form I-601A waiver will only be rejected for a failure to pay the required or correct filing fee, not the biometric fee. Individuals who have failed to pay the required or correct biometric fee will be notified of that failure. USCIS will not process applications filed by individuals who do not pay the required or correct biometric fee.

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23. How long it takes to process an I-601 waiver?

In terms of processing times, USCIS and DOS are coordinating closely to make sure that the timing of the approval of a provisional unlawful presence waiver application is close to the time of the scheduled immigrant visa interview abroad. Generally, it takes 4 to 6 months to process an I-601A waiver application.

In addition, DOS estimates that it will schedule the applicant for an immigrant visa interview within 2 to 3 months after approval of the provisional unlawful presence waiver and the applicant’s submission of the required immigrant visa processing documents to DOS.

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24. Is premium process available for an I-601A waiver?

No, but applicants can request expedited adjudication of a provisional unlawful presence waiver in accordance with current USCIS expedite guidance.

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25. When will this new rule takes effect?

March 4th, 2013.

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26. Will the termination of my conditional Lawful Permanent Resident (LPR) status affect my I-601A waiver validity?

DHS has clarified that termination of an alien’s conditional LPR status would result in automatic revocation of an approved waiver of inadmissibility only if the approved waiver is based on: 1) certain criminal offenses, or 2) fraud or willful misrepresentation of a material fact.

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27. If the I-601A waiver is approved, does that mean I have a legal status to stay in the United States?

No. DHS has made it clear that the approval of a provisional unlawful presence waiver does not: constitute a grant of any lawful immigration status, extend any authorized period of stay, allow an alien to enter the United States without obtaining a visa, protect aliens from removal or law enforcement action, or grant any other immigration benefits, including temporary work authorization and advance parole.

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28. If my provisional waiver application is approved, does it mean that I will get my immigrant visa once I depart the U.S.?

Not necessarily. Once provisional waiver is granted, an individual must depart the U.S. and visit a U.S. consulate abroad for an immigrant visa interview. During the immigrant visa interview, the consular officer will make the finding of inadmissibility based on unlawful presence and apply the provisional waiver. However, if the consular officer determines that other grounds of inadmissibility are found (e.g. criminal grounds of inadmissibility, medical grounds, fraud or misrepresentation bars, permanent bar, etc.), then the individual would need to submit another waiver application, if eligible, while abroad and wait for its adjudication while outside of the U.S.

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29. What should I do if my I-601A waiver application is approved during removal proceeding?

If granted the provisional unlawful presence waiver, you should seek termination or dismissal of your removal proceedings. The request for termination or dismissal will be determined before you depart for your immigration visa interview to avoid delay in your later visa processing.

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30. What if my I-601A waiver is denied?

Once the I-601A is ultimately denied, you are not allowed to appeal or file a motion to reopen.

Alternatively to provisional waiver process, an individual who withdraws his or her provisional waiver application prior to final adjudication, or whose provisional waiver is denied, can apply for a traditional waiver and wait for the waiver’s adjudication while outside of the U.S. For a traditional waiver process, you may file a Form I-601, Application for Waiver of Grounds of Inadmissibility with the USCIS Lockbox, after you attend the immigrant visa interview and after DOS conclusively determines that you are inadmissible. The Form I-601 is appealable to the AAO.

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31. Can I file another new I-601A waiver application, if my prior I-601A waiver request is denied?

Yes. If your provisional unlawful presence waiver request is denied or withdrawn, you may file a new Form I-601A, in accordance with the form instruction, with the required fees and any additional documentation that you believe might establish your eligibility for the waiver. Your case must still be pending with DOS and you must notify DOS that you intend on filing a new I-601A.

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32. What will happen to me if my provisional waiver application is denied or withdrawn? Will I be placed in removal proceedings?

The major question of the public that has not been addressed by USCIS in the final rule is what will happen to those aliens whose provisional waiver applications are denied. Final rule does not contain any confidentiality provisions that would protect the aliens from being placed in removal proceedings if their waiver application is denied.

USCIS has confirmed during the public engagement earlier today that the agency will use its current guidance in deciding whether to refer the case to ICE for removal proceedings if the waiver application request is denied. Consistent with Department of Homeland Security enforcement priorities, DHS does not envision initiating removal proceedings against aliens or referring aliens to ICE whose provisional unlawful presence waiver applications have been approved.

Consistent with its civil enforcement priorities, DHS has stated that an individual whose request for a provisional unlawful presence waiver is denied or who withdraws the waiver request prior to final adjudication will typically be referred to ICE only if he or she is considered a DHS enforcement priority – that is, if the individual has a criminal history, has committed fraud, or otherwise poses a threat to national security or public safety.

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33. Can I leave the United States before biometrics collection?

No. DHS will not permit capture of biometrics abroad, because the Form I-601A process is a domestic process that applies only to aliens who are present in the United States at the time of filing. Therefore, you have to be physically present in the U.S. at the time of filing of the waiver application and have to appear for biometrics processing.

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34. Can I reenter the U.S. before or after the provisional waiver is granted but before the immigrant visa is issued?

No, in accordance with the new rule, a provisional unlawful presence waiver is automatically revoked if the alien, at any time before or after the approval of the provisional unlawful presence waiver, or before the immigrant visa is issued, reenters or attempts to reentered the United States without being admitted or paroled.

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35. Do I need an attorney to apply for a provisional unlawful presence waiver?

We recommend that you consult with an immigration attorney experienced in inadmissibility waiver process before you apply. Careful review of your case will help determine whether you qualify for the new process or whether any additional grounds of inadmissibility apply. Our office has extensive experience focused on various waivers of inadmissibility. Our attorneys will help you determine whether provisional waiver processing is the best solution for your immigration case. Feel free to contact our office for your free initial consultation and waiver eligibility assessment.

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