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Waiver

Deportation Attorneys for Waiver in California

Many times people cannot complete processing of their applications for the Green Card because they either have been denied or will be denied because of a prior deportation, criminal act or misrepresentation.

A waiver is a package that is sent to the appropriate United States government official consisting of legal arguments, declarations and exhibits. It essentially asks the government to forget (or waive) the particular ground that makes you ineligible for the Green Card. Once granted, it will allow your applications to be approved.

Here is some information on the Provisional Waiver in an easy to understand question and answer format:

 

Finally! We can apply for a Stateside Provisional Waiver.

 

Question: I have heard that the regulations for the Stateside Waiver are final. Is that true?

 

Answer: Well, first you musty realize that an applicant for an immigrant visa, adjustment of status, or a K or V nonimmigrant visa who is inadmissible under any provision of section 212(a) of the Act for which a waiver is available. However, the Stateside Waiver regulations are now final. Certain immigrants may apply for a provisional unlawful presence waiver of inadmissibility.

Question: Who will provide the decision on the Provisional Waiver?

Answer: USCIS will provide a written decision and notify the applicant and his or her attorney or accredited representative and will advise the applicant of appeal procedures if denied.

Question: Where must I file the Provisional Waiver?

Answer: All applications for a provisional unlawful presence waiver, including an application for a provisional unlawful presence waiver made by an alien in removal proceedings before the Executive Office for Immigration Review, must be filed with USCIS. USCIS may adjudicate applications for a provisional unlawful presence waiver of inadmissibility. The decision whether to approve a provisional unlawful presence waiver application is discretionary and does not constitute a grant of a lawful immigration status or a period of stay authorized by the Secretary. Thus, do not think at this point that only because it is being filed with USCIS that it is easy to get or that the burden of proof has changed. In fact, the Provisional Waiver must be prepared with all of the supporting documents, declarations and other evidence to show the hardship to the United States relative.

Question: Since the approval of the Provisional Waiver is inside the United States, can I get a work permit while I’m waiting for my interview at the U.S. Consulate?

Answer: No, a pending or an approved provisional unlawful presence waiver does not authorize any interim immigration benefits such as employment authorization or advance parole. Any application for a travel document or request for employment authorization that is submitted in connection with a provisional unlawful presence waiver application will be rejected.

Question: Who exactly is eligible to apply for the Provisional Waiver?

Answer: A foreign national may be eligible to apply for and receive a provisional unlawful presence waiver for the grounds of inadmissibility when he or she is unlawfully present.. An alien may be eligible to apply for or receive a waiver if he or she:

(i) Is present in the United States at the time of filing the application for a provisional unlawful presence waiver, and for biometrics collection at a USCIS ASC;

(ii) Upon departure, would be inadmissible only because of unlawful presence at the time of the immigrant visa interview;

(iii) Qualifies as an immediate relative (spouse of United States Citizen, unmarried child of United States Citizen, or parent of United States son or daughter over 21 years old);

(iv) Is the beneficiary of an approved immediate relative petition;

(v) Has a case pending with the Department of State based on the approved immediate relative petition and has paid the immigrant visa processing fee as evidenced by a State Department Visa Processing Fee Receipt;

(vi) Will depart from the United States to obtain the immediate relative immigrant visa; and

(vii) Meets the requirements for the Waiver and that the foreign national must show extreme hardship to his or her U.S. citizen spouse or parent.

(4) Ineligible Aliens. Notwithstanding paragraph (e)(3) of this section, an alien is ineligible for a provisional unlawful presence waiver under paragraph (e) of this section if:

(i) USCIS has reason to believe that the alien may be subject to grounds of inadmissibility other than unlawful presence under section 212(a)(9)(B)(i)(I) or (II) of the Act at the time of the immigrant visa interview with the Department of State;

(ii) The alien is under the age of 17;

(iii) The alien does not have a case pending with the Department of State, based on the approved immediate relative petition, and has not paid the immigrant visa processing fee;

(iv) The Department of State initially acted to schedule the immigrant visa interview prior to January 3, 2013 for the approved immediate relative petition on which the provisional unlawful presence waiver is based, even if the interview has since been cancelled or rescheduled after January 3, 2013;

(v) The alien is in removal proceedings, unless the removal proceedings are administratively closed and have not been recalendared at the time of filing the Form I-601A;

(vi) The alien is subject to a final order of removal issued under section 217, 235, 238, or 240 of the Act or a final order of exclusion or deportation under former 236 or 242 of the Act (pre-April 1, 1997), or any other provision of law (including an in absentia removal order under section 240(b)(5) of the Act);

(vii) The alien is subject to reinstatement of a prior removal order under section 241(a)(5) of the Act; or

(viii) The alien has a pending application with USCIS for lawful permanent resident status.

(5) Filing. (i) An application for a provisional unlawful presence waiver of the unlawful presence inadmissibility bars under section 212(a)(9)(B)(i)(I) or (II) of the Act, including an application by an alien in removal proceedings that are administratively closed and have not been recalendared at the time of filing the Form I-601A, must be filed in accordance with 8 CFR part 103 and on the form designated by USCIS. The prescribed fee under 8 CFR 103.7(b)(1) and supporting documentation must be submitted in accordance with the form instructions.

(ii) An application for a provisional unlawful presence waiver will be rejected and the fee and package returned to the alien if the alien:

(A) Fails to pay the required filing fee for the provisional unlawful presence waiver application or to pay the correct filing fee;

(B) Fails to sign the provisional unlawful presence waiver application;

(C) Fails to provide his or her family name, domestic home address, and date of birth;

(D) Is under the age of 17;

(E) Does not include evidence of an approved petition that classifies the alien as an immediate relative of a U.S. citizen;

(F) Fails to include a copy of the fee receipt evidencing that the alien has paid the immigrant visa processing fee to the Department of State; or

(G) Has indicated on the provisional unlawful presence waiver application that the Department of State initially acted to schedule the immigrant visa interview prior to January 3, 2013, even if the interview was cancelled or rescheduled after January 3, 2013.

(6) Biometrics. (i) All aliens who apply for a provisional unlawful presence waiver under this section will be required to provide biometrics in accordance with 8 CFR 103.16 and 103.17, as specified on the form instructions.

(ii) Failure to appear for biometrics capture. If an alien fails to appear for biometrics capture, the provisional unlawful presence waiver application will be considered abandoned and denied pursuant to 8 CFR 103.2(b)(13). The alien may not appeal or file a motion to reopen or reconsider an abandonment denial under 8 CFR 103.5.

(7) Burden of proof. The alien has the burden to establish eligibility for the provisional unlawful presence waiver as described in this paragraph of this section, and under section 212(a)(9)(B)(v) of the Act, including that the alien merits a favorable exercise of the Secretary’s discretion.

(8) Adjudication. USCIS will adjudicate the provisional unlawful presence waiver application in accordance with this paragraph of this section and section 212(a)(9)(B)(v) of the Act, except the alien must show extreme hardship to his or her U.S. citizen spouse or parent. USCIS also may require the alien and the U.S. citizen petitioner to appear for an interview pursuant to 8 CFR 103.2(b)(9). If USCIS finds that the alien does not meet the eligibility requirements for the provisional unlawful presence waiver as described in paragraph (e) of this section, or if USCIS otherwise determines in its discretion that a waiver is not warranted, USCIS will deny the waiver application. Notwithstanding 8 CFR 103.2(b)(16), USCIS may deny an application for a provisional unlawful presence waiver without prior issuance of a request for evidence or notice of intent to deny.

(9) Notice of Decision. USCIS will notify the alien and the alien’s attorney of record or accredited representative of the decision in accordance with 8 CFR 103.2(b)(19). USCIS also may notify the Department of State. Denial of an application for a provisional unlawful presence waiver is without prejudice to the alien filing another provisional unlawful presence waiver application under paragraph (e) of this section, provided the alien meets all of the requirements in this part, and the alien’s case must be pending with the Department of State. An alien also may elect to file a Form I-601, Waiver of Grounds of Inadmissibility, pursuant to paragraph (a)(1) of this section after departing the United States, appearing for his or her immigrant visa interview at the U.S. Embassy or consulate abroad, and after the Department of State determines the alien’s admissibility and eligibility for an immigrant visa. Accordingly, denial of a request for a provisional unlawful presence waiver is not a final agency action for purposes of section 10(c) of the Administrative Procedure Act, 5 U.S.C. 704.

(10) Withdrawal of waiver requests. An alien may withdraw his or her request for a provisional unlawful presence waiver at any time before USCIS makes a final decision. Once the case is withdrawn, USCIS will close the case and notify the alien and his or her attorney or accredited representative. The alien may file a new Form I-601A, in accordance with the form instructions and required fees. The alien’s case must be pending with the Department of State and the alien must notify the Department of State that he or she intends to file a new Form I-601A.

(11) Appeals and Motions To Reopen. There is no administrative appeal from a denial of a request for a provisional unlawful presence waiver under this section. The alien may not file, pursuant to 8 CFR 103.5, a motion to reopen or reconsider a denial of a provisional unlawful presence waiver application under this section.

(12) Approval and Conditions. A provisional unlawful presence waiver granted under this section:

(i) Does not take effect unless, and until, the alien who applied for and obtained the provisional unlawful presence waiver:

(A) Departs from the United States;

(B) Appears for an immigrant visa interview at a U.S. Embassy or consulate; and

(C) Is determined to be otherwise eligible for an immigrant visa by a Department of State consular officer in light of the approved provisional unlawful presence waiver.

(ii) Waives the alien’s inadmissibility under section 212(a)(9)(B) of the Act only for purposes of the application for an immigrant visa and admission to the United States as an immediate relative of a U.S. citizen pursuant to the approved immediate relative petition (Form I- 130 or I-360) upon which the provisional unlawful presence waiver application was based.

(iii) Does not waive any ground of inadmissibility other than the grounds of inadmissibility under section 212(a)(9)(B)(i)(I) or (II) of the Act.

(13) Validity. Until the provisional unlawful presence waiver takes full effect as provided in paragraph (e)(12) of this section, USCIS may reopen and reconsider its decision at any time. Once a provisional unlawful presence waiver takes full effect as defined in paragraph (e)(12) of this section, the period of unlawful presence for which the provisional unlawful presence waiver is granted is waived indefinitely, in accordance with and subject to paragraph (a)(4) of this section.

(14) Automatic Revocation. The approval of a provisional unlawful presence waiver is revoked automatically if:

(i) The consular officer determines at the time of the immigrant visa interview that the alien is ineligible to receive a visa under section 212(a) of the Act other than under section 212(a)(9)(B)(i)(I) or (II) of the Act;

(ii) The immigrant visa petition approval associated with the provisional unlawful presence waiver is at any time revoked, withdrawn, or rendered invalid but not otherwise reinstated for humanitarian reasons or converted to a widow or widower petition;

(iii) The immigrant visa registration is terminated in accordance with section 203(g) of the Act, and has not been reinstated in accordance with section 203(g) of the Act; or

(iv) The alien, at any time before or after approval of the provisional unlawful presence waiver or before an immigrant visa is issued, reenters or attempts to reenter the United States without being inspected and admitted or paroled.


10 Comments - Leave a Comment
  • Cristhina -

    Hello Mr Brian i watch a lot of your videos on you tube and se that you are really smart when it comes to immigration! can you please help me with my case with in advise my husband is in brazil now since 2010 he was order removed form US for Re entry in 2004 tru Mexico border and in 2004 he got a letter of 10 years but he was under age and when he become 18 he was transferred to a adult camp and he ask to be departed and they give him 10 years and 2006 he reenter US tru Border again and live her since 2010 and ICE cam and pick him up so since then i when to Brazil and got married with him and field the I-130 and 3 month it was approved and then we field all paperwork that NVC ask us for DS-260 i-864
    ect.So now we have his interview set up for next month and i wold like to now what come next do we file for a waiver aft her his interview? I-212 i-601?
    if you can help thanks you.
    ?

  • admin -

    Waiver of Inadmissibility
    A Waiver of Inadmissibility will have to be obtained. This is an application that will include a legal brief, forms, documents, exhibits, declarations and other evidence. My firm can prepare the entire waiver, and attach all of the necessary documents. It will take several months for the decision, and if done correctly, there is a good chance of an approval. The Waiver essentially makes the crime or ground of ineligibility disappear so that entry or re-entry will be allowed into the U.S. Please note that the Waiver is the critical part of this application, and unless approved, there cannot be any other petition that will allow entry into the U.S. Therefore, the Waiver must be prepared with significant supporting documents. 
     

  • Daniel gomez -

    Hello Brian I see that you love what you do because of the fact the you take the time to port videos and help people with your messages. I have a questions me and my wife got married and I filed her documents in order for her to be legal in this country she wasn’t granted the documents and was punished 10 years, a little background on her she has been living in the us since she was 15 years old now she is 29 and has reported taxes and I have contributed with my taxes since I have a business returning to the topic she got thrown back to Mexico and I decided to cross the border with her but she got cough but until the second try it was successful my question is is there any document or waiver that can reduce or remove that 10 year penalty is it possible ?
    Thank you

  • Anilorak -

    How much are you charging to put together the waiver package. My brother just had his interview appointment abroad (Bogota) after his fiancee field the I-129. It was expected that the visa was not granted due to grounds of inadmissibility. Consular officers gave him instructions to file the waiver.

  • alex -

    i overstayed after i got divorced for a couple of years(didn’t get green card) i’m wondering if i can apply from my home country (jordan)for this visa,

  • Ngozi -

    Hello Attorney Brian, I have a question. My husband I have been approved of the I-130 and NVC has completed our files. NVC states that I have to file i-601A for my husband. My husband is no longer in the US. He came to the US when he was 18 and now he is 32. He was apprehended at the border in October 1998. he used a false identification to come into the US. His dad who is a LPR hired an attorney for him to fight his case. My husband was detained in an immigration center in Jamaica, NY awaiting his date for court. The attorney tried to seek asylum for him but the request was denied. My husband refused to file an appeal and requested to be removed. The Judge ordered removal on August 20, 1999 back to Nigeria. Here is my question-Currently we are awaiting visa interview but I was told he will be inadmissible to come into the States unless a waiver is filed. I need to know which waiver to file. Do i file i-601 or i-212? Yesterday I visited the immigration office and was told that i-601 will not pertain to us because there is no hardship that is being faced so I was advised to file i-212 since my husband was removed. Also the immigration Judge at that time gave him a 5 year bar. He has not been back to the US. We got married in Nigeria with both families present at our wedding. just need my hubby here with me. Please help with advice. thank you

  • fernando -

    I am currently living in the US in unlawful presence. I came to US with a visitors VISA in 1997, then went back to my home country (Mexico) in 2002 for couple of week and came back right away with the same visa, than in 2006 I went back again to my home country for my sisters wedding and came back to the states with same visa within a week. My US citizen brother filed a petition for me in 2002 and was accepted in 2005. Now, I am married to US citizen and will like to know what possibilities do I have to get a green card.

  • Gerard Algodon -

    I was deported 9 years ago, i was convicted of touching a girl 13 years old 1990, I fled guilty a reason that my public defender told me that would lessen my jail time if i fled guilty,which i did only three mos. on county jail 5 years probation, I got out in jail.. work my hard out… make money,
    Got married have two children, bought a house cars,,, i was having what i was dreaming off… 13 years later i renew my green card, and arrest me right then…. try to fight for few years but out of luck…
    What i don’t understand why they give me a chance to build a family, Happy Family i mean i pay my taxes work hard i was a good citizen then with a green card…

    all of the sudden 13 years later cut me off? throw me back to philippines?

    What happen to my Children’s future… luckily my wife work hard… im having a hard time making money here in Philippines to afford to help my children finished they’re school…

    please tell me if i have a chance…. i’m hundred percent i’ll find a job there… i can go back working in Alaska which i work there for about five years….

    Thank You and God bless

    Sincerely Yours,

    Gerard Algodon

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