When an individual is present in the United States illegally, an automatic ban is put in place for re-entry into the country if the individual leaves the U.S. in pursuit of an immigrant visa. There is a three year penalty for six months to one year of unlawful presence, and ten years for any illegal stay over one year in duration. These penalties remain in effect even if the individual is the beneficiary of an approved immigrant visa and is otherwise able to qualify for immigrant status.

Because the final interview for an immigrant visa is held in the country of origin of the beneficiary, an individual who is in the United States illegally must return to their home country and remain for up to ten years before having a chance to be reunited with family members in the U.S. The only hope to avoid these automatic bans is a provisional waiver.

What is a provisional waiver and how does it work?

A provisional waiver cancels the automatic ban from illegal presence if the beneficiary is otherwise able to qualify for an immigrant visa. These waivers are granted on an case-by-case basis and subject to strict guidelines. While the original provisional waiver, USCIS Form 601, can only be submitted in the beneficiary's home country when an immigrant visa interview is performed, a new version, USCIS Form 601A, may be submitted in the United States before the individual leaves the country for their visa interview.

What are the restrictions and benefits of applying for a provisional waiver while still in the United States?

Form 601A is more restrictive than Form 601. While Form 601 may be filed by any family member of a United States citizen or permanent resident, Form 601A may only be submitted by the immediate relative of a United States citizen who petitioned for the individual to obtain an immigrant visa.

Immediate relative status is limited to the following:

• Spouses
• Parents
• Children under 21 years old

By allowing form 601A to be submitted and processed in the United States prior to the individual's departure for their visa interview, the family can remain together while the form is being processed, which may take several months. If an individual must wait until they return to their home country for their visa interview, they must remain there during the processing time.

The unofficial benefit of filing for a provisional waiver while still in the U.S.

If the provisional waiver is denied while the beneficiary is still in the country, they may decide to remain with their family in the United States without legal status. If provisional waiver Form 601 is denied after the beneficiary has returned to their home country for their interview, they are trapped, separated from their family members for up to ten years.

Why is it difficult to get an approval for a provisional waiver?

Both types of provisional waiver petitions demand proof that denial of the petition would cause "extreme hardship" to the family member in the United States, not to the family member who would be forced to leave the country.

Extreme hardship, in this case, doesn't count the wrenching emotional pain of being separated from their family member. The family member who remains in the United States must prove that they would suffer financial, health, or educational difficulties if their relative's petition were denied and they were forced to return to or remain in their home country. Because the term "extreme hardship" is nebulous and arbitrarily defined with each individual petition, many petitions are denied.

Anyone who hopes to be successful in obtaining a provisional waiver should consult with an immigration attorney like those at Carmen DiAmore-Siah Attorney At Law. An immigration lawyer who is familiar with these cases and how previous petitioners have obtained approvals can offer invaluable guidance in the approach that should be taken to maximize the possibility for an approval.