Here is what the State Dept. is saying:
About the Provisional Unlawful Presence Waiver
On January 2nd, 2013, U.S. Citizenship and Immigration Services (USCIS) announced that certain immediate relatives of U.S. citizens present in the United States, who are in the process of seeking immigrant visas with the Department of State to become lawful U.S. permanent residents, may apply and be approved for provisional unlawful presence waivers before departing the United States to attend their immigrant visa interviews. Refer to the Provisional Unlawful Presence Waiver News Release and Instructions on the USCIS Website for eligibility information and instructions. Learn more. USCIS will begin accepting provisional unlawful presence waiver, Form I-601A applications on March 4th, 2013.
The National Visa Center (NVC) Process – Frequently Asked Questions (FAQs)
If you have applied/are applying for the I-601A provisional waiver, listed below is important information regarding the National Visa Center pre-processing of your immigrant case and your interview at the U.S. embassy or consulate you designated.
If the Department of State has already scheduled my immigrant visa appointment, how do I determine if I am eligible to submit the I-601A to USCIS?
Applicants with an interview appointment letter from the National Visa Center dated before January 3rd, 2013 are not eligible to file the Form I-601A. Only applicants scheduled by the National Visa Center on or after January 3rd, 2013 for an upcoming initial immigrant visa interview are eligible to apply for the I-601A. “Scheduled” means the date on which NVC took the action to schedule the case – not the date of the visa interview appointment. NVC dates interview appointment letters on the day it schedules a case, so refer to the appointment notification letter to see when NVC took the scheduling action.
How do I get a copy of my immigrant visa (IV) application processing fee payment receipt?
You must submit proof of payment of your IV fee with your I-601A provisional waiver application to USCIS, attaching a copy of the receipt. Follow the instructions below to obtain a fee receipt copy:
| If the Immigrant Visa Application Fee was: | Then do the following: |
| Paid Online: If you paid the IV fee online through the Consular Electronic Application Center (CEAC) | Return to the CEAC site and print a copy of your receipt |
| Paid by Mail: If you paid the fee by mail to the NVC | You must request a copy of your receipt from NVC. To request a copy of your IV fee payment receipt, send an email to NVCI601A@state.gov with the subject line: "Fee Payment Receipt Request” and also include your NVC case number. |
Will NVC schedule my IV interview appointment even if I submit an I-601A provisional waiver to USCIS?
No, after you submit your I-601A Provisional Unlawful Presence Waiver Application, USCIS will notify the National Visa Center (NVC) that it received your Provisional Waiver application and NVC will not schedule your immigrant visa interview appointment until USCIS informs NVC of its determination about your I-601A application.
What should I do once USCIS approves my I-601A provisional unlawful presence waiver?
Once USCIS approves your Form I-601A, it will inform NVC of its decision. If NVC has received all required forms and documents for your immigrant visa case, NVC will schedule your immigrant visa interview at the U.S. embassy or consulate you designated and notify you of your interview appointment date. You will then need to depart the United States to attend your immigrant visa interview at the designated location. If you fail to depart and attend your immigrant visa interview, the provisional unlawful presence waiver will not take effect, and the approval may no longer be valid.
What will happen during the visa interview at the U.S. embassy or consulate if the consular officer determines that I have other visa ineligibilities?
If the consular officer determines at your immigrant visa interview that you have other ineligibilities (grounds of inadmissibility or are otherwise not eligible for the visa) beyond unlawful presence, the USCIS approved provisional waiver is automatically revoked. Learn more on the USCIS Website, provisional waiver.
END OF STATE DEPARTMENT RELEASE.
Aliens however should not simply file form I-601A with the presumption that because a relative petition such as I-130, or employment based petition such as I-140, has been approved on their behalf, the provisional waiver will be granted. This waiver appears only to apply to aliens who are spouses or parents of US Citizens. Hence, if the alien is a "preference alien," such as for example, an engineer with an approved I-140, or the spouse of a Lawful Permanent Resident (LPR) whose priority date is current, this process will not be available to them, unless the administration elects to significantly broaden the program.
Further, if the alien entered the United States with inspection, and is married to a US Citizen, or entered the US with inspection and is an unmarried child under 21 of a US Citizen, or entered the US with inspection and is the parent of a US Citizen, this provisional waiver process is likely not for such alien either, since with good legal counsel, said alien may find the laws related to adjustment to LPR status without leaving the US, to be more favorable and expeditious for them.
Aliens with criminal records and other grounds of inadmissibility should also be extremely careful in pursuing the provisional waiver process. The wise approach, as always, is to consult an immigration attorney prior to filing this (or any other) immigration application, to determine eligibility (or for that matter, whether the process is even required, given the alien's particular circumstances), and to anticipate unintended consequences which might result from such application.
By Duane M. Hamilton
