Important information about the provisional exemption from illegal presence
What is the provisional exemption of illegal face-to-face?
Before the approval of the temporary waiver of illegal presence, immediate family members of United States citizens who are not eligible to adjust their immigration status, must complete their visa obtaining process from abroad.
Now, it is not always the case. However, those who have more than 180 days of illegal presence in the United States can (and should) obtain a provisional exemption from illegal presence to stop the application of the illegal presence time processes and sanctions according to the laws of the United States.
Now, the new exemption process does not change the immigrant visa process. Even if approval of the exemption is obtained, you must leave the United States for an immigrant visa interview at a consular office.
If the exemption is approved, they will only take effect as soon as you leave the United States, a consular officer determines your eligibility to receive an immigrant visa and you appear at the interview.
To request a provisional exemption for illegal presence, you must submit a Form I-601A regarding that request and pay the corresponding fee of $630 for filing fee and $85 for biometric services for a total of $715.
If the person does not qualify for the provisional exemption, they may submit Form I-601 regarding the application for exemption from grounds of inadmissibility, after it has been determined that it is inadmissible for the provisional exemption.
Who can request the provisional exemption of illegal presence?
- Those who meet all the following requirements:
- Be 17 years old or older
- Be an immediate family member (spouse, child or father) of a US citizen 21 years of age or older. It does not apply to be an immediate family member of a green cardholder.
- Have an immigrant visa case for immediate family member before the State Department pending because:
- Is the beneficiary of an I-130 form, upon request of an approved foreign relative or I-360, Petition for Amerasian, widower or special immigrant and has paid the processing fee
- The State Department has selected it for participating in the Diversity Visa Program
- Is a spouse or child of a primary beneficiary of an approved immigrant visa petition or a selected Diversity Visa Program
- You must show that the denial of your admission will cause serious difficulties for the direct relative who is a US citizen
- Be in the United States to submit the application
- He considers that it is inadmissible only and exclusively because he has an illegal presence period of more than 180 days during a stay.
- Meets the other requirements outlined in Form I-601A
The people to whom one of the following conditions apply are not eligible:
- Have any other grounds of inadmissibility apart from illegal presence.
- They are in the middle of a removal process that has not been administratively closed.
- They are in a removal process that has already been administratively closed but they have been placed on the judicial calendar to continue with their procedure.
- A status adjustment process is pending
- A final order of exclusion or deportation. In that case, the provisional exemption can only be requested if Form I-212 has been requested and approved. Application for Permission to Reapply to the United States After Being Deported or Removed when you File Form I-601A
- at the time you submit Form I-601A and its instructions.
- If your form I-601A is incomplete or is not accompanied by the payment of filing fees and biometric data or submit it with another form or request.
It should be made clear that the fact of having a provisional exemption for illegal presence does not :
- Grants any United States immigration or removal protection benefits.
- Allows you to apply for immigration benefits such as employment authorization or advance permission.
- It does not guarantee that you will receive an immigrant visa.
- Does not guarantee admission to the United States.
- It does not grant you a legal immigration status.
- It does not exempt you from leaving the United States to receive an immigrant visa.
On the other hand, if your I-601A form is approved, you must complete any removal process that you have pending whether you stop or dismiss before leaving the United States to appear at your immigrant visa interview at an office to consult the United States abroad. If you leave the United States before the process ends, it is quite likely that the immigrant visa processing will be extended or even that you will end up being ineligible based on another inadmissibility criteria.
If USCIS denies your request for provisional exemption for illegal presence, unfortunately, there are no motions for reconsideration.
However, if it is denied or if you withdraw the application before the decision is made, you can submit a new form I-601A, that is, start the process from scratch. This may be done as long as your immigrant visa case before the State Department remains pending and you must first notify that you wish to submit a new form.
The other procedure that you can follow if your I-601A form is denied is to request an exemption using the I-601 form, as previously discussed. This form can only be requested after submitting in your visa interview and if the State Department determines that there is any other cause of inadmissibility.
If the request for provisional exemption for illegal presence is rejected, USCIS does not intend to initiate a removal process or deliver to the ICE applicants whose application has been rejected. USCIS regularly limits itself to referring ICE to a case if the person has a criminal record, has committed fraud or is in any way a threat to national security.
