3 Ways Obama’s Executive Action Changes the I-601A Provisional Waiver Program

The executive action on immigration that President Obama issued this month calls for some shifts in the I-601A provisional waiver program that took effect in 2013. The provisional waiver program allows immediate relatives of US citizens who are not eligible to adjust status in the U.S. because they entered without inspection to file a waiver of the 3 or 10 year bars to readmission prior to leaving for a consular interview. Allowing applicants to apply for the waiver and getting an approval before departing the U.S. for an interview (and thus triggering the 3 or 10 year bar) avoids extended absences abroad. We have filed many successful waivers since its inception, but the program is not without its flaws.

By way of executive action, Obama has called for revisions of the process in 3 significant ways:

1. Obama expanded the provisional waiver program by allowing people to apply for a stateside waiver of unlawful presence if they can demonstrate hardship to a lawful permanent resident spouse or parent. This expands the program for those who are not immediate relatives of US citizens. The USCIS recognizes that the petitioner may not be the qualifying relative. For example, an adult US citizen child may petition for their parent, and the parent can qualify for the waiver by demonstrating extreme hardship to their lawful permanent resident spouse.

2. The executive action also requires the USCIS to “clarify” the standard to be met to establish “extreme hardship.” The provisional waiver program to date has required a relatively high standard of hardship to qualify for a waiver. Presumably this standard will be relaxed, and may even allow certain presumptions of hardship to be made in certain situations.

3. The executive action also created a Deferred Action for parents of US citizen and lawful permanent residents. Recipients of Deferred Action will be eligible to apply for Advance Parole, which is a travel document that allows an individual to leave the U.S. for travel abroad, and be paroled back into the U.S. This may eliminate the need for the provisional waiver for some individuals. When the individual is paroled into the U.S., they are no longer subject to the prohibition against adjusting status within the United States because they have now been paroled into the U.S. rather than having entered without inspection. Also, because a departure on advance parole does not trigger the 3 and 10 year bars, that person will not be required to file a waiver of unlawful presence. In other words, they can adjust status in the United States, if they are otherwise eligible with a current visa petition, without having to leave for a consular interview abroad and without having to file a provisional waiver. Nobody should travel abroad without first seeking legal advice to be sure that it is safe to do so, even if USCIS grants advance parole.

We will continue to keep you informed of updates as these changes are put into action. Immigration attorneys at Wiley & Jobson are happy to consult with you regarding your individual circumstances.