The provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver in the United States and before they depart for their immigrant visa interviews at a U.S. embassy or consulate abroad. It is only available to immediate relatives of US Citizen and those intended immigrant that have a qualifying relative to file unlawful presence waiver.
Although the application for this waiver seems straightforward, there are very tricky points. For example, a person that is eligible to adjust status in the U.S., should not apply for this waiver nor seek consular processing of the application. Equally, an immigrant that is petitioned by his/her U.S. citizen son or daughter (who are considered immediate relatives) may not qualify for the unlawful presence waiver.
The waiver is filed in form I-601A, however the US Citizenship and Immigration Service (US CIS) will not approve a case that is not well documented with supportive evidence. This documentation must convince the U.S. CIS that the qualifying relative will suffer "extreme hardship" if the waiver is not approved. The term "extreme hardship" is a legal term which meaning has been addressed by various administrative and federal courts. A long separation of 10 years from your loved one alone is "not" considered "extreme hardship".
Furthermore, the U.S. CIS has reported a great percentage of submissions rejections for failure to comply with the minimum requirements (such as showing payment of National Visa Center fee) and has already starting using a letter called "Request For Evidence" (RFE) to document the "extreme hardship" element in well prepared applications. The RFE is a single opportunity to overcome what the US CIS sees an insufficient submission. If you fail to overcome their preliminary determination, the waiver will be denied. There is an initial showing that the government is applying the law to the full extent and will not approve every submission.
At Law Offices of Mariela Caravetta we are working in putting together strong packages that will contain all the required elements so the application is approved, without delay. Many of our clients have received fingerprint notifications and we are waiting for a decision. As to the date of this posting, US CIS has not approved any case in the entire county.
