On July 29, 2016, the USCIS amended the regulations governing the Provisional Waiver program and expanded it in significant ways. 81 Federal Register (Fed. Reg.) 50243 (July 29, 2016). Those changes took effect on Aug. 29, 2016, the same day that the agency published a new Form I-601A, which incorporates those changes. This article will provide step-by-step guidance in completing the form, answering the questions and filing the packet.

While the new Form I-601A appears straightforward, many of the questions have important eligibility ramifications. For example, the form asks if the applicant has committed fraud or smuggling, engaged in drug trafficking, committed terrorist acts, or been convicted of a crime. It then states that if the applicant answers in the affirmative, “your application for a provisional unlawful presence waiver may be denied as a matter of discretion.” But it fails to add that being subject to a separate ground of inadmissibility also makes the applicant ineligible for the provisional waiver.

The USCIS is no longer empowered to deny an application if it has “reason to believe” that the applicant is inadmissible under a ground other than unlawful presence; it may only take that into consideration when it weighs the positive and negative factors as part of its discretionary analysis. Nevertheless, it should have included a warning that if the applicant is found to be inadmissible for any of the listed actions in Part 1, questions 32-45, an approved I-601A waiver will simply be revoked by the State Department during the consular interview. The applicant, in that case, would need to file a Form I-601 to waive both the unlawful presence and the separate ground of inadmissibility while waiting abroad, assuming the separate ground is even waivable.

Some of the questions ask for biographic data and others request technical responses. Do not leave any questions unanswered. If the question does not apply then answer “N.A.”; if the question requires a numeric response and the answer is zero, then write “none.”

Most applicants will be using the fillable form available on the USCIS website or on their case management software program. If printing it out, type or use black ink to complete the form. The waiver applicant must sign the form; a stamped or typewritten signature will not be accepted. If you need additional space to answer any of the questions, go to “Part 9. Additional Information” or attach a separate sheet of paper. Type or print the applicant’s name and A# at the top of each page, reference the page number, part number, and item number to which the answer refers, and sign and date each page.

Remember that all the information provided must be true to the best of your client’s knowledge. The U.S. Department of Homeland Security (DHS) warns that an individual who commits fraud on the application is subject to the issuance of a notice to appear (NTA), the initiation of removal proceedings. 78 Fed. Reg. 554 (Jan. 3, 2013).

 

Part 1—Information about the Applicant

Question 1, Alien Registration Number: This number, called an “A” number, identifies individuals who have a record in the immigration system. If the applicant has ever been in removal, deportation, or exclusion proceedings, or been issued a notice to appear, an order to show cause, or a notice to applicant for admission detained for hearing before an immigration judge, he or she will have an “A” number. If the applicant previously applied for an immigration benefit, such as deferred action, DACA, adjustment of status, asylum,or was granted certain benefits, such as Temporary Protected Status, he or she also may have an “A” number.

An “A” number is a red flag that the applicant may be inadmissible based on a prior removal, deportation, or exclusion order, which may make him or her ineligible for a provisional waiver. If the applicant has an “A” number, you need to know the reason for the issuance of the “A” number and whether the “A” number reflects that the applicant is inadmissible for a ground other than unlawful presence.

You can investigate whether the applicant’s “A” number points to a ground of inadmissibility in several ways:

Call the Executive Office of Immigration Review (EOIR) 800 Number: If you have the applicant’s “A” number, you can call the EOIR toll-free number at 800-898-7180 to determine whether the immigration judge or Board of Immigration Appeals (BIA) issued an order of removal. You will also be able to determine whether a removal proceeding is ongoing.

File an FBI Criminal Records Check: An FBI criminal record check will frequently—but not always—reveal an order of removal. You can request an FBI criminal record check by completing the form available on the FBI website, including a hard copy (not electronic) fingerprint Form FD-258, and including a money order or cashier’s check in the amount of $18. Review the FBI record checklist to ensure that you have included all of the required information. Send the form, fee, and fingerprint card to:

FBI CJIS Division – Record Request
1000 Custer Hollow Road
Clarksburg, WV 26306

The FBI record check response time is approximately six weeks.

File a Freedom of Information Act (FOIA) Request: You can file a request to obtain a copy of the applicant’s immigration file through a FOIA request. The response to a records request under FOIA varies widely. Practitioners have reported recently that it takes between three to four months to get requested records back from the National Records Center. The USCIS website includes a processing time report for FOIA requests and maintains that the processing times for Tracks 1-3 range between 32 and 106 days for A-File material; processing times for Tracks 1-2 range between 56 and 127 days for non-A-File material.

Question 2, Social Security Number: If the applicant has a valid Social Security card issued to him or her by the Social Security administration, you may list this Social Security card number. USCIS states in the Form I-601A instructions and on the Form I-601A itself that Question 2 is an optional field and need not be answered. Do not include fictitious numbers.

Question 3, USCIS Online Account Number: If the applicant has previously filed an application or petition with the USCIS using the online filing system, he or she will have been issued an account number.

Question 4, Full Name: This is the applicant’s legal last, first, and middle name. This may be the name on the applicant’s birth certificate, but it may also be the applicant’s married name, or the name obtained through a legal name change.

Question 5-6, Other Names Used: If the applicant has used other names, including a maiden name, a name given to an employer, a nickname, or a name given to law enforcement officials when stopped, detained, or fingerprinted, those names should be added to this section. If the applicant has never used another name, state “N.A.” in this section.

Check to see if all other documents you are submitting in support of the waiver application use the applicant’s name as listed in Question 4. If the employer’s letter, bank statements, tax returns, etc., use names other than the applicant’s current legal name, make sure that you add those names to Question 5-6.

Question 7, Mailing Address: Write the address where the applicant would like to receive any correspondence from USCIS regarding this application. This is where the decision or any request for evidence will be sent. The applicant should feel comfortable that this is a secure address for the receipt of mail. USCIS indicated that applicants should make sure that apartment numbers are included in the mailing address.

Questions 8-9, Physical Address: This question asks for the physical address where the applicant resides, even if he or she does not receive mail at this address. Do not provide a post office box. In order to be eligible for the provisional waiver, this address must be in the United States. Make sure the address on the applicant’s supporting documents is the same as the addresses listed in Questions 7-9.

Question 10, Gender: Indicate whether the applicant is male or female.

Question 11, Date of Birth: List the applicant’s birth date in month/day/year format.  Confirm that the date listed in Question 11 is the same as the birth date on the applicant’s birth or marriage certificates, passport or other identification documents provided.

Questions 12–13, City, Country of Birth and Country of Citizenship: Write the place where the applicant was born, including the city and country of birth.

Question 14, Country of Citizenship: List the applicant’s country of citizenship or nationality. If the applicant does not have citizenship in any country, write “stateless” and provide an explanation in Part 9.

Question 15–16, Mother’s and Father’s Name: Put the full legal name of both parents.

Question 17-18, Last Entry into the United States: State the date of the applicant’s last entry into the United States in month/day/year format. Include port of entry or the nearest city or town and state where the applicant entered the United States.

Question 19, Immigration Status: If the applicant entered the United States without inspection or parole, write “PWI” or “EWI.” If an immediate relative entered the United States with authorization, he or she is likely eligible for adjustment of status. Almost everyone who enters as a nonimmigrant, as well as those who were paroled into the United States, would be eligible for adjustment of status if they are an immediate relative. The nonimmigrant categories that do not qualify for adjustment of status include those in C and D visa status, and K-1 visa holders who failed to marry the U.S. citizen petitioner within 90 days after admission. Individuals who are applying for adjustment of status are ineligible for a provisional waiver. If the applicant entered the United States with inspection and admission, you should evaluate whether adjustment of status, in lieu of consular processing, is the preferred alternative. For those who are immigrating in one of the preference categories, entry with inspection is only one of the eligibility requirements for adjustment of status.  The other is that they must have always maintained lawful immigration status, which means not working without authorization and not overstaying the period of time allowed by the I-94, Arrival/Departure Record.

Question 20-26, Previous Entries into the United States: If the applicant entered the United States on other occasions, write the Port-of-Entry (or approximate city) and state of the applicant’s prior entries, the dates that the applicant was present in the United States, and the applicant’s immigration status at the time of entry. If there are more than two previous entries, then include them in the space provided in Part 9.

An answer to this question may indicate that the applicant is inadmissible under Immigration and Nationality Act (INA) § 212(a)(9)(C)(i)(I) for accruing more than one year of unlawful presence on or after April 1, 1997, departing the United States, and then returning to the United States without inspection and admission. An individual subject to this ground of inadmissibility is not only ineligible for a provisional waiver, but is also subject to the “permanent” bar.

Carefully review all of the applicant’s travel to and from the United States, especially trips on or after April 1, 1997. If you see more than one entry into the United States since that date, calculate the total period of unlawful presence in the United States to ensure that the applicant did not accrue more than one year of unlawful presence followed by a departure and illegal reentry. Do not file a provisional waiver for an individual inadmissible under INA § 212(a)(9)(C)(i)(I).

Question 27-44, Immigration or Criminal History:

Question 27: If the applicant is currently in removal, exclusion, or deportation proceedings in which no final order has been issued, check box “Yes.” If the applicant is not in proceedings or a final order has already been issued, then check “No” and proceed to Question 29a.

An applicant is in proceedings if an Order to Show Cause or a Notice to Appear has been lodged with the immigration court and the case has not been terminated. A person is still in proceedings if they have been administratively closed. A person is still in proceedings if a final order has been issued and the person has not affected or executed the order by departing the country. If the immigration judge has not issued a final order, or if the case has been appealed to the Board of Immigration Appeals (BIA) and it has not issued a final order, then the applicant should check “Yes.” In that case the applicant qualifies to file a provisional waiver if he or she files a motion with EOIR to close the proceeding and the immigration judge administratively closes the case. Contact the Office of Chief Counsel, the assistant district counsel assigned to the case, or the head district counsel to determine if there is an objection to the request for administrative closure. Even if the district counsel objects to the motion for administrative closure, the immigration judge may grant the motion pursuant to a BIA decision that provides that a motion for administrative closure may be granted despite opposition from one of the parties. Persons whose proceedings have been terminated are no longer in proceedings. In this case, they should include a copy of all documents relating to the proceedings and an order of termination.

Question 28.a: If the applicant is in immigration proceedings where no final order has been issued and is successful in getting the immigration judge to administratively close the case, check this box. Persons in proceedings may file for the provisional waiver if they have had their case administratively closed and, at the time of filing, their case has not been placed back on EOIR’s calendar. They will need to include a copy of the administrative closure order.

Question 28.b: Applicants who are in proceedings and whose case has not been administratively closed, or whose case was closed but EOIR subsequently placed the proceedings back on its calendar, should check this box. These persons are ineligible to file for the provisional waiver until they administratively close their case and, if so, it has not been placed back on EOIR’s calendar.

Question 29.a: If the applicant is currently in removal, exclusion, or deportation proceedings in which a final order has been issued, check box “Yes.” Persons who have departed the United States after a final order was issued have affected or executed the order.  These persons are no longer considered in immigration proceedings and they should check “No.”

An applicant has a final order if the immigration judge ordered the person deported, excluded, or removed and the order was not appealed to the BIA, or it was appealed and the BIA upheld the order. This includes persons who were granted a period of voluntary departure in lieu of deportation or removal and that period has now elapsed. Departure and execution of the deportation, exclusion, or removal order would then make the person inadmissible for a period of five or ten years (20 years in some situations). INA § 212(a)(9)(A). Persons who have executed the order by departing the United States and then reentering without inspection on or after April 1, 1997 have triggered a separate ground of inadmissibility called the “permanent bar.” INA § 212(a)(9)(C)(i)(II). This ground may not be cured through the provisional waiver process.  Instead, the person must reside abroad for ten years and then obtain a waiver (consent to reapply) by filing a Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal. Persons who have a final order but who have not departed the United States and executed the order may apply for a waiver of this ground of inadmissibility before they leave. This is done by filing the Form I-212 with the USCIS in the jurisdiction where the person was ordered removed. If the I-212 is approved, the individual's order of removal, deportation, or exclusion would no longer bar him or her from obtaining an immigrant visa abroad. After obtaining such consent, the person would then be eligible to apply for the provisional waiver. Otherwise, persons subject to a final order of deportation or removal who have not been granted a Form I-212 would be ineligible to file for the provisional waiver. 8 CFR § 212.7(e)(4)(iv).

Persons who without “reasonable cause” fail or refuse to attend or remain in attendance at an immigration hearing commenced on or after April 1, 1997 will be issued a final order of removal in absentia. When that order is executed by departing the United States, the person will trigger a separate ground of inadmissibility that renders him or her inadmissible for a mandatory five-year period. INA § 212(a)(6)(B). There is no waiver eligibility for this ground of inadmissibility. The five-year period begins upon departure from the United States, though the five years does not have to be spent outside the United States. The granting of a Form I-212 would waive the five- or ten-year bar under INA § 212(a)(9)(A), but would not cure the separate ground of inadmissibility under INA § 212(a)(6)(B). For that reason, persons subject to an in absentia removal order would not be eligible for the provisional waiver.  They would need to reopen their case and have the order vacated.

Question 29.b: Those persons who are still in proceedings, have been issued a final order, apply for a “waiver” on Form I-212, and whose Form I-212 is granted, may then apply for the provisional waiver.  They will enter the USCIS receipt number for the Form I-212 that was approved.  The applicant can also submit a copy of the I-212 approval notice in lieu of entering the receipt number.

Question 30.a: Indicate whether the applicant has been served with a DHS Form I-871, which is notice that the agency intends to reinstate a prior order of deportation, removal, or exclusion.

Most persons who executed a deportation or removal order and have reentered the United States illegally after April 1, 1997 have triggered the “permanent” bar under INA § 212(a)(9)(C)(i)(II) and thus are ineligible for the provisional waiver until they have resided abroad for ten years and then been granted a “waiver” on Form I-212. But persons who reentered the United States illegally prior to April 1, 1997 would not have triggered that bar. Nevertheless, they may be ineligible for the provisional waiver based on a separate statutory provision. Illegal reentry to the United States after a deportation, removal, or exclusion order renders the person subject to reinstatement of removal. INA § 241(a)(5). In order for persons to be ineligible for the provisional waiver based on this provision, ICE or CBP must have formally reinstated the order. 8 CFR § 212.7(e)(4)(v). Evidence of the agency’s formal reinstatement begins with service of a Form I-871, Notice of Intent/Decision to Reinstate Prior Order. If the applicant has been served with a Form I-871, it will put the USCIS on notice that the person will be ineligible for the provisional waiver as soon as the prior order is formally reinstated.

Question 30.b: Indicate if the applicant has been served with a final decision reinstating a prior order of deportation, removal or exclusion. If the applicant checks box “Yes,” do not file the provisional waiver since the applicant is ineligible.

Question 31: Persons who were issued a grant of voluntary departure by the immigration judge, and that period has not expired, are still considered in proceedings and have not been issued a final order.  They would not be eligible to file for the provisional waiver until the proceedings are administratively closed. To accomplish that, they would first need to reopen their proceedings and withdraw their request for voluntary departure. Then they would then be able to request administrative closure.  Or, alternatively, they would need to overstay and thus terminate their period of voluntary departure.  They would then still be considered in proceedings but subject to a final order or deportation, exclusion, or removal.  In that case, they would follow the procedure set forth in Question 29.b and apply for a “waiver” of the final order on Form I-212.  If that is approved, they would then be eligible to file for the provisional waiver.

Question 32-45: Other Grounds of Inadmissibility

The following questions ask if the applicant is possibly inadmissible based on a number of grounds.  Being found inadmissible on a ground separate from unlawful presence makes the applicant ineligible for the provisional waiver. Unfortunately, the form only warns applicants that admission of any of the actions listed in questions 32-45 will be taken into consideration as a possible adverse discretionary factor. In fact, applicants who are likely to be found inadmissible at the consular processing stage should not file for the provisional waiver.  If the USCIS were to exercise favorable discretion and grant the I-601A, the applicant would then be subject to revocation when the State Department makes a formal finding of inadmissibility on a ground separate from unlawful presence. Therefore, if it appears that the applicant is inadmissible for fraud, false claim of citizenship, smuggling, drug trafficking, conviction of a crime of moral turpitude, or a security-related ground, do not file for the provisional waiver. It serves no purpose for someone to apply for the provisional waiver when he or she is ineligible for it.  But it is far worse for them to apply, be granted, and then depart the United States only to be denied by the consulate and stranded abroad with possibly limited options.

Question 32: Fraud or Misrepresentation: If the applicant knowingly and willfully gave false information to a Department of State, DHS, or other government official to gain entry or admission to the United States or to obtain an immigration benefit, check “Yes.” If not, check “No.” Do not file the application for a provisional waiver if the applicant checks “Yes.”

The applicant is inadmissible under INA § 212(a)(6)(C) if he or she by fraud or misrepresentation knowingly or willfully gave false information to a government official to obtain an immigration benefit. The misrepresentation must have been material, i.e., they would have been denied the benefit if they had told the truth. Immigration benefits include adjustment of status, advance parole, employment authorization, asylum, withholding of removal, Deferred Action for Childhood Arrivals (DACA), Temporary Protected Status (TPS), naturalization, and employment authorization.  It does not include employment itself, however.  So misrepresentations on a Form I-9 – other than a false claim of citizenship – would not constitute misrepresentation for immigration purposes. This ground of inadmissibility makes the applicant ineligible for a provisional waiver. However, the applicant may apply for an I-601 waiver under INA § 212(i) after a finding of inadmissibility by the consulate. Applicants who made a false claim of U.S. citizenship on or after Sept. 30, 1996 in order to gain an immigration benefit or any benefit under state or federal law are inadmissible. There is no waiver for this ground of inadmissibility, although there is a narrow exception.  Children below a certain age may be found to have lacked the legal and mental capacity to have triggered this ground of inadmissibility.

Applicants who entered without inspection and admission did not seek to enter or be admitted to the United States by fraud or misrepresentation. For applicants who entered with inspection, review their passport and discuss any trips the applicant made to the U.S. consulate to obtain or try to obtain a nonimmigrant visa. Discuss whether the applicant attempted unsuccessfully to enter the United States with documents not his or her own.

Question 33, Smuggling: If the applicant helped anyone else to enter the United States in violation of law, check “Yes.” If not, check “No.” Do not file the application for a provisional waiver if the applicant checks “Yes.”

The applicant is inadmissible under INA § 212(a)(6)(E) if he or she knowingly encouraged, induced, assisted, abetted, or aided any noncitizen in entering or trying to enter the United States in violation of the law. Some U.S. consulates have become vigilant in asking immigrant visa applicants if they ever entered the United States illegally accompanied by a family member. If the applicant’s child has entered the United States illegally, the consulate will ask if the applicant assisted in this illegal entry in any significant way. You should be asking your client detailed questions about how he or she and any other family members entered the United States to determine if smuggling was committed. This ground of inadmissibility is currently one of the most common reasons the consulate revokes provisional waivers.  Applicants may be eligible for an I-601 waiver of this ground of inadmissibility under INA § 212(d)(11) following a finding of inadmissibility at the consulate.

Question 34, Arrested, Cited, Detained by DHS or Law Enforcement: If the applicant has been arrested, cited, or detained in the United States or abroad for any reason other than a traffic violation, check “Yes.” In that case attach a description of the event, including the date and location. This includes arrests at the border where the applicant was processed and voluntarily returned to Mexico. If the applicant was arrested but not charged with any offense, provide a statement or other documentation from the arresting authority, prosecutor’s office, or court to show that the applicant was not charged with any crime or offense.

You should obtain a certified copy of the records relating to the event to determine if the applicant is inadmissible under INA § 212(a)(2) for crime-based inadmissibility grounds or INA § 212(a)(3) for security-related inadmissibility grounds. In addition, obtain a copy of the state statute to determine whether the criminal offense falls within the “petty offense” exception under INA § 212(a)(2)(ii). In most but not all cases, an arrest, citation or detention without a conviction is not enough to make the applicant inadmissible.

Remember that the applicant will be submitting biometrics and the USCIS will be examining the results of the background check, which would typically include the applicant’s criminal history and possible immigration violations. Make sure you carefully screen the applicant for arrests and contact with law enforcement. Remember to obtain FBI and state criminal record checks before starting the waiver process. If the applicant is admissible despite a criminal conviction, include a copy of the certified record of conviction, the state statute, and any other information that explains that the offense does not constitute a crime involving moral turpitude. While the form indicates that criminal-related conduct or prior immigration violations will be weighed as possible negative discretionary factors, they may also result in findings of inadmissibility and thus ineligibility for the provisional waiver. Some criminal-related grounds of inadmissibility may be waived under INA § 212(h).

Question 35, Charged, Indicted, Convicted, Imprisoned, Jailed: If the applicant has been charged, indicted, convicted, imprisoned, jailed for any crime or offense in the United States or abroad, check “Yes.” In that case, attach a description of the event, the date of the event, a certified copy of the court charging documents and dispositions. See the information above for Question 34.

Questions 36-37, Drug Trafficking: Check “Yes” if the applicant is currently trafficking in any controlled substance or has trafficked in the past. Check “Yes” if the applicant is currently or has ever knowingly assisted, abetted, conspired, or colluded with others in trafficking controlled substances. Do not file the application for a provisional waiver if the applicant checks “Yes.”

There is a separate ground of inadmissible for persons believed to be drug traffickers. INA § 212(a)(2)(C). No conviction—or even valid admission—is necessary. This ground applies to “[a]ny alien who the consular or immigration officer knows or has reason to believe is or has been an illicit trafficker in any such controlled substance.” It also applies to persons who knowingly assist, and to abettors, conspirators, and those who collude with others. Spouses and children who knowingly obtained financial or other benefit from the illicit activity within the previous five years are also inadmissible. INA § 212(a)(2)(C)(ii). An “illicit trafficker” is “a knowing and conscious participant or conduit in an attempt to smuggle” a controlled substance. This broad definition applies not only to persons who smuggle or attempt to smuggle drugs into the United States, but also to people who serve as conduits for the drug trade within the United States. A person can be an illicit trafficker even if he or she has committed only one transgression.

Question 38, Prostitution: Check “Yes” if the person is currently or has ever been engaged in prostitution. See below to determine if the applicant meets the definition or “engaged in prostitution.” Make sure the applicant is not inadmissible file the application for a provisional waiver if the applicant checks “Yes.”

The phrase “engaged in prostitution” requires that the person must have been involved in this type of conduct over a period of time. Having been convicted of a single act of prostitution does not make the person inadmissible under this ground. The ground of inadmissibility does not cover acts of solicitation of prostitution on one’s own behalf. No conviction for an offense involving prostitution is required. Those falling into either of these two categories are inadmissible: (1) coming to the United States to engage in prostitution or who have engaged in prostitution within 10 years of the date of application for a visa, adjustment of status, or entry into the United States; and (2) procurers of prostitutes, or who attempt to procure, or who receive the proceeds of prostitution, or people who have done any of these activities within 10 years of applying for a visa, adjustment of status, or entry into the United States. INA § 212(a)(2)(D).

Question 39, Human Rights Violations: If the applicant ever ordered, incited, called for, committed, assisted, helped with, or otherwise participated in human rights violations involving torture, genocide, killing, intentionally and severely injuring any person, engaged in any sexual conduct or relations with any person who was being forced or threatened, or limited or denied any person’s ability to exercise religious beliefs, check “Yes.” Do not file the application for a provisional waiver if the applicant checks “Yes.” If the applicant checks “Yes,” he or she is likely inadmissible under INA § 212(a)(3)(E) and will not be eligible for a provisional waiver.

Questions 40-45, Terrorist Activity and Possible National Security Threats: These questions ask about prior service in military units, paramilitary groups, and guerrilla groups; work in jails, detention facilities, prison camps; use of weapons, sale of weapons, or receipt of weapons training; use of children under 15 in service of armed forces or to take part in hostilities. Check “Yes” if the applicant engaged in any of these and provide a complete explanation in Part 9. These questions were added to the I-601A to comply with the Intelligence Reform Terrorism Prevention Act and the Child Soldier Accountability Act. They relate directly to inadmissibility grounds at INA §§ 212(a)(3)(B), (F), and (G).  The negative effect of checking “Yes” will depend largely on the particular circumstances and the explanation for the admitted conduct. For example former police officers or members of the military who received weapons training in their home country as part of mandatory military service should not be found inadmissible, nor should that training be a negative discretionary factor.

 

Part 2—Information About the Applicant

Questions 1-6, Biographical Information: Provide the information requested regarding ethnicity, race, height, weight, and eye and hair color. Do not use metric system for height and weight.

 

Part 3—Information About the Immigrant Visa Case

Questions 1.a-e, Basis on Which Applicant is Immigrating: Check the appropriate box indicating whether the applicant is immigrating as a family-based (immediate relative or preference category) beneficiary, employment-based beneficiary, DV selectee, widow, or VAWA grantee.

Question 2.a-d, DV Selectee or Derivative: If the applicant is a DV selectee or derivative, enter the Department of State (DOS) DV case number.  This number is found on the print-out from the DV Entrant Status Check page of the DOS Electronic Diversity Visa system website, www.dvlottery.state.gov. If the applicant is a derivative, enter the DV selectee’s full name in 2.b-2.d.

Question 3.a-f, Approved Visa Petition Information: If the applicant is the beneficiary of a family-based petition, an employment-based petition, a widow self-petition, or a VAWA self-petition, provide the USCIS receipt number of the underlying approved petition (I-130, I-140, or I-360).  The USCIS requests that the applicant also submit with the waiver packet a copy of the Form I-797 approval notice, if available. Failure to include a copy of the approval notice “may result in processing delays or the rejection of your application.” Also provide the National Visa Center (NVC) Consular Case number. This is located on the receipt for the DOS immigrant visa processing fee. This case number should correspond to the USCIS approved petition. Provide the full name of the I-130 petitioner or company that filed the I-140 petition. If the applicant is a widow or VAWA recipient who filed a self-petition, write “Self.” If the applicant is a derivative of a widow or VAWA petition, put the name of the self-petitioner.

 

Part 4—Information About the Qualifying Relative

Question 1.a-c, Qualifying Relative’s Name: Provide the last, first, and middle name of the qualifying relative. The qualifying relative is the applicant’s U.S. citizen or LPR parent or spouse.

Question 2.a-d, Relationship to Applicant: Check the box to indicate if the qualifying relative is the applicant’s U.S. citizen or LPR spouse or parent.

Include a copy of the U.S. citizen spouse or parent’s proof of citizenship and proof of relationship to the applicant (birth certificate, marriage certificate) with the waiver packet.

Questions 3-5, Other Qualifying Relative: If the applicant has another qualifying relative in addition to the one listed in Question 1, check “Yes.” Provide the second qualifying relative’s name and indicate his or her relationship to the applicant.

Include a copy of the U.S. citizen or LPR spouse or parent’s proof of citizenship or proof of LPR status and proof of relationship to the applicant (birth certificate, marriage certificate) with the waiver packet.

 

Part 5—Statement from the Applicant

A statement from the applicant describing why the qualifying relative would experience extreme hardship and why the applicant merits a waiver in the exercise of discretion is required.

This statement, in conjunction with one from the qualifying relative(s), will form the basis for approving the application. Attach detailed declarations from both the applicant and the qualifying relative to the waiver packet.

In this section, write “See attached declaration of ____ (name of applicant).” The declaration, as well as all of the other supporting documents for the waiver packet, must include the applicant’s name and either the USCIS receipt number or the applicant’s “A” number.

 

Part 6—Applicant’s Statement, Contact Information, Certification, and Signature

Questions 1-6: The applicant must sign this section of the form under penalty of perjury. This must be an original signature; a copy of the signature will not be accepted. A parent or legal guardian may sign the form if the applicant is mentally incompetent. The applicant must also indicate that he or she reads and understands English or used an interpreter, who read every question and instruction to the applicant, as well as the answer to every question. If the applicant is using someone to help prepare the answers on the application, check that box and have the preparer complete Part 8. The applicant certifies to the accuracy of photocopied documents and authorizes the release of information contained in the application or from any of the applicant’s records.  The applicant also authorizes the release of any information contained in the application, in supporting documentation, or in USCIS records to other entities or persons “where necessary for the administration and enforcement of U.S. immigration laws.

 

Part 7—Interpreter’s Contact Information, Certification, and Signature

Questions 1-7: The interpreter must sign a certification that he or she is fluent in English and the applicant’s language and that the interpreter read every question on the form to the applicant and that the applicant understood the questions and answers given. The certification must be dated.  The interpreter must also provide his or her first and last name, business or organization name, mailing address, and contact information.

 

Part 8—Preparer’s Contact Information, Certification, and Signature

Questions 1–7: The person who prepared the application must list his or her first and last name, business or organization name, mailing address, and contact information. In addition, if the preparer is a BIA-accredited representative or attorney, the preparer may need to include a signed Form G-28, Notice of Appearance. The preparer must declare that the information prepared is based on information obtained from the applicant in response to the questions on the form or based on the preparer’s knowledge. The preparer must sign and date the application.

 

Part 9—Additional Information

Use this section to include any additional information relevant to the application. Indicate to which page, part, and item number the additional information relates. If you plan to include additional information in an attached statement, write “See attached statement” in this section, with the applicant’s name and “A” number (if any) at the top of each attached sheet.

 

Filing Requirements

The regulations and Form I-601A instructions contain specific requirements for the filing of the application.

 

The Application and Biometrics Fee

Each application must include a filing fee. Currently the filing fee is $585. Check the USCIS website to verify that the filing fee has not changed.

All applicants under the age of 79 must include a filing fee for biometrics (fingerprints) in the amount of $85. Confirm the amount of the biometrics fee by checking the USCIS website.

The check or money order for the filing and biometrics fees must be payable to U.S. Department of Homeland Security. Spell out the words “Department of Homeland Security”; do not use initials.

 

USCIS Address for Filing Waiver Packet

The current USCIS address for all provisional waivers is the USCIS Chicago lockbox. Confirm that the Chicago lockbox remains the filing address on the USCIS website. If using the U.S. Postal Service to mail the waiver packet, the address is:

USCIS
P.O. Box 4599
Chicago, IL 60680

 

If using a courier service such as UPS or FedEx, the address is:

USCIS
Attn: I-601A
131 S. Dearborn, 3rd Floor
Chicago, IL 60603-5517

 

The Chicago lockbox will transfer the waiver applications to the National Benefits Center for adjudication.

 

Copy of the Immigrant Visa Application Fee Bill Receipt

USCIS will not accept the provisional waiver packet unless it includes evidence that the applicant paid the immigrant visa application fee to the Department of State. Place a copy of the receipt of the immigration visa application fee bill issued by the National Visa Center on top of the Form I-601A. The fee receipt should include the National Visa Center case number and show payment of the immigrant visa application fee. If the fee was paid online, a printed receipt from the online payment is acceptable evidence of payment.

 

Name of Applicant and USCIS Receipt Number on Supporting Documents

Every page of each supporting document must contain the applicant’s name and the USCIS receipt number. If the applicant has an “A” number, that should be included. The USCIS website also states that you may include pagination for the attached documents. For example, write at the bottom “1 of 11.”

 

Copy of the I-797 Approval Notice

Include a copy of the I-130, I-140, or I-360 approval notice, Form I-797, with the waiver packet.

 

Copy of Administrative Closure Order or Approved I-212

An applicant in removal proceedings that have not resulted in a final order will not be eligible to file a provisional waiver unless the removal proceedings have been administratively closed and not re-calendared. Attach a copy of the EOIR order administratively closing the applicant’s removal proceedings with the waiver packet.

An applicant in removal proceedings that have resulted in a final order will not be eligible to file a provisional waiver unless the USCIS has granted the applicant’s Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal. Attach a copy of the I-212 approval notice.

Make sure that the applicant’s name on the EOIR order is the same as that on the waiver application and supporting documents.

 

Biometrics Appointment

After the USCIS receives the waiver application, the applicant will be scheduled for a biometrics appointment at an Application Support Center. The applicant will receive a notice of the biometrics appointment and must attend the appointment.

 

Applicant and Qualifying Relative Declarations

The applicant and the qualifying relatives should submit detailed declarations in support of the waiver application. Provide proof of the relationship between the applicant and the qualifying relative, such as copy of marriage certificate, copy of birth certificate, adoption decree, etc. In addition, include proof of the qualifying relative’s LPR status or U.S. citizenship. Evidence of the U.S. citizenship may include a copy of a birth certificate issued by one of the 50 states or by Guam or Puerto Rico, a copy of a naturalization certificate, a copy of a U.S. passport, or Form FS-240, Report of Birth Abroad. Evidence of LPR status is the Form I-551, Permanent Resident Card.

 

Documents Proving Extreme Hardship and Discretion

Submit copies of the documents proving extreme hardship to the qualifying relatives and copies of documents that establish that discretion should be favorably exercised in the case. As noted, the documents should be identified in an index, paginated, and contain the applicant’s name and a number or USCIS receipt number.

After preparing the application and supporting documents, ask a colleague to review the packet to make sure you have complied with all of the filing requirements. A second set of eyes always helps. The application may be rejected or denied if the requirements are not met.