I-601A Provisional Unlawful Presence Waiver Requirements
The process toward gaining an I-601A provisional waiver of the unlawful presence grounds of inadmissibility can be time consuming, and it can be fruitless if you do not meet all of the requirements.
In addition to being physically present in the United States and over 17 years old, I-601A waiver seekers must meet several more criteria. If you are unclear about what other requirements are necessary to acquire this provisional waiver, it may be helpful to sit down with an I-601A lawyer.
Criteria for a Provisional Waiver
To be eligible for an I-601A provisional waiver of the unlawful presence grounds of inadmissibility individuals must meet all of the following criteria:
If a foreign national has a parent or spouse who is a United States citizen (USC) or lawful permanent resident (LPR), they might seek an immigrant visa based on this relationship. However, if the immigrant visa petitioner is unlawfully present in the United States, they may also need to apply for an I-601A provisional waiver.
The length of time that one is unlawfully present in the United States is also a factor in determining whether or not an I-601A will be approved. Therefore, it can be important to discuss this matter with an experienced provisional waiver attorney.
Period of Unlawful Presence in the United States
Individuals who believe that they have been unlawfully present in America may apply for an I-601A if they have been in the United States for either of the following periods of time:
Extreme Hardship to a USC or LPR Spouse or Parent
Finally, petitions for an I-601A provisional waiver should be accompanied by documentation of extreme hardship on a spouse or parent who is a United States citizen or lawful permanent resident. A provisional waiver attorney may provide examples of persuasive documents during an I-601A consultation.
Some ways to show extreme hardship are with family photos that show the closeness of parent and child, tax documents that show that the noncitizen spouse earns all or a large portion of the family income, and evidence of any health issues that are impacting the USC or LPR spouse or their children.
Who is not eligible for an I-601A provisional waiver?
Persons who are unlawfully present in the United States and are in removal proceedings may not be eligible for an I-601A provisional waiver if their case has not been administratively closed. Even if a person’s removal proceedings have been administratively closed, they may not be eligible if their case has been calendared to continue the process with the Executive Office for Immigration Review (EOIR).
Other persons who may not qualify for an I-601A provisional waiver include those who have received an order of removal, exclusion, or deportation, including those that were issued in absentia. In both instances it can be important to discuss your case thoroughly with a provisional waiver attorney, so that you can address these issues prior to submitting your form I-601A.
After the I-601A Provisional Waiver is Approved
An approval of an I-601A petition does not mean that you will automatically receive a U.S. immigrant visa. After receiving your approval of the provisional waiver, you will need to depart the United States and attend a consular interview in your original country.
Protection From Deportation After Approval
I-601A recipients are required to exit the United States so that they may attend an interview on the matter at the foreign consulate. Therefore, persons who are in the United States when they receive their approval notice may not use it to protect themselves from deportation.
If an individual is concerned that they may be deported from the United States, this may be a matter that should be discussed with an I-601A provisional waiver lawyer.
Interim Benefits After Approval of a Provisional Waiver of Inadmissibility
Another caveat for persons with an approved I-601A provisional waiver of inadmissibility is that they may not apply for interim benefits in the United States before their consulate interview. Because the approved I-601A waiver does not mean a guaranteed green card, individuals must not apply for benefits that could render them ineligible during the consulate interview.
Could your I-601A provisional waiver of inadmissibility be revoked?
Unfortunately, even if you are approved for an I-601A provisional waiver during your process toward gaining an immigrant visa, there is always the possibility that it could be revoked. To avoid such misfortunes, it may be prudent to work closely with your I-601A provisional waiver attorney and share as much information as possible with them.
Situations Where an Approved I-601A Could Be Revoked
The following are examples of times when a provisional waiver of inadmissibility may be validly revoked:
You may be able to benefit from the experience of a seasoned I-601A immigration lawyer who is aware of the various pitfalls during the immigrant visa process. Contacting competent immigration counsel can make all the difference in your I-601A journey.
Can you sponsor your undocumented spouse for a green card?
With the new administration in the White House, there has been a great deal of discussion about new paths to citizenship. But what if you are in the United States lawfully, and you are wed to an undocumented, noncitizen spouse? Are there roads available to an immigrant visa, otherwise known as a green card?
Overcoming immigration restrictions will depend both on the current situations of the U.S. citizen or permanent resident and that of their husband or wife.
U.S. citizen with a spouse who overstayed their visa
When a United States citizen (USC) has married someone who was once in the country legally but overstayed their visa, their spouse may still be able to acquire a green card from the USCIS. Individuals who entered the United States validly, and then married a USC, can become the beneficiary of a marriage-based green card.
In such cases, a USC spouse can sponsor their husband or wife in a petition for lawful permanent resident (LPR) status. Although the couple could fill out the Form I-130 on their own, a skilled green card lawyer can compile the submission with the latest immigration updates in mind.
U.S. citizen sponsor of a spouse who entered America unlawfully
If a United States citizen marries someone who came to America out of necessity, but without permission, they may still be able to sponsor them for a green card. Even so, the length of time that they have spent in the U.S. can make a difference.
Spouses who entered the United States and stayed for less than 180 days can exit the country and then apply for a green card through a U.S. consular office. Alternatively, those who remained longer in America will need to leave the country and could be barred for 3 to 10 years.
Nonetheless, foreign nationals could update their immigration status via an approved Form I-130 and a provisional waiver, if they meet certain criteria. Skilled immigration lawyers can help such individuals understand whether they might meet these standards.
Lawful permanent residents who want to sponsor their undocumented spouse for a green card
Husbands or wives who hold lawful permanent resident status in the United States may wonder whether the latest immigration news includes them among those eligible to sponsor an undocumented spouse for a green card. There is a nice surprise for LPR spouses.
The current immigration policies allow for green card holders to sponsor their undocumented spouses in ways similar to that of U.S. citizens. However, sometimes the process takes longer and involves more steps. Therefore, it can be worth it to discuss the process with a knowledgeable immigration professional who has stayed abreast of the immigration news today, so that those with LPR status can obtain solid information about sponsoring their spouses.
The USCIS issues more than 360,000 F1 visas to scholars who wish to study in the United States. Many foreign nationals need extra funds to sustain themselves while earning a degree at an American university.
If you are studying at a U.S. university on an F1 visa, or you plan to, you may be wondering how to make money when you are not in class. Actually, there are several ways that you can earn a living while in you are in America on an F1 visa. You can also find a way to continue working in the United States after you graduate.
Types of employment on an F1 visa
There is more than one way to work legally in the United States on an F1 visa. Some prefer to find campus jobs, while others prefer to acquire practical training that they can use in their careers.
Curricular Practical Training (CPT)
F1 students who need an internship or other form of cooperative education to complete their educational program might consider Curricular Practical Training, or CPT. Within this program, students on an F1 visa can gain work experience within their field of study, so long as it is required by their U.S. university.
To be eligible for CPT, foreign students must have been enrolled in school full-time for at least one year in the United States on an F1 visa. Additionally, the student needs to have obtained a job offer related to their academic program before they even apply for a curricular practical training authorization.
F1 visa students who are choosing to work through Curricular Practical Training can only work with approved companies that are on the Student and Exchange Visitor Information System (SEVIS) and the Form I-20 list. Therefore, students who want to work outside their major, or for a company that is not approved, should choose another option besides CPT.
Working on campus
Foreign national students who are not interested in an internship, or are too early in their academic program, might want to get a campus job. Foreign students can make some pocket money by working on campus, as long as they meet certain conditions.
In order to maintain F1 status while working in a campus job, foreign university students must meet the following criteria:
Optional Practical Training (OPT)
After graduating from an American university program, a foreign national may want to extend their F1 visa a little while longer. Optional Practical Training (OPT) is a bit like Curricular Practical Training (CPT), but there are some differences.
Unlike CPT, with OPT the F1 visa holder can complete it either before or after graduation. However, like CPT, the F1 student should have been enrolled in the university for at least one year. Although OPT and CPT jobs should be in the foreign national’s field of study, with OPT the job does not need to be with an approved company from a list
F1 visa holders who have been studying science, technology, engineering, or math may want to consider applying for STEM-OPT. This will allow the foreign national student to explore paid training within their STEM field of study for an additional 24 months beyond their Optional Practical Training.
The STEM-OPT Extension is available to foreign students who obtained a bachelors, masters, or doctoral degree in a STEM major from an American university that is approved by the Student and Exchange Visitor Program (SVEP). Even if a student is currently working on an OPT in a non-STEM major, they may be able to get a STEM-OPT extension based on a prior STEM degree from an approved U.S. university.
Working outside the university
Students who are in the United States on an F1 visa may work away from their college campus in limited circumstances. Those who can show the United States Citizenship and Naturalization Service (USCIS) that they have a “severe economic hardship” may be able to have a part-time position off campus.
This type of qualifying hardship must be beyond the control of the student. Thus, money pressures like unexpected medical bills, loss of financial aid, or a sudden tuition and housing increase may make a student eligible to work away from campus.
To be allowed to work off campus after experiencing sudden, unexpected financial difficulties, the student must also have been studying with this F1 visa status for one year and must be unable to get a job on campus to relieve their financial stress.
Working with an international organization
Students who are interested in global studies might find it appealing to work for an international organization. This can be an option for some F1 visa scholars.
Like many of the other work options, the job should be in the student’s field of study, and the organization must be listed as eligible for F1 visa students. Examples of qualifying international organizations include:
Spouses and children of F1 visa students
Foreign national students who are married and/or have children may wish to have more than one income to support their household. Unfortunately, the spouse of an F1 visa holder can arrive in the United States on an F2 visa, but they cannot legally work in the United States.
One option for the spouse of an F1 visa holder is to get an F1 visa themselves and explore some of the authorized work options afforded by this visa.
Although employment verification letters (EVL) are useful for financial purposes, such as gaining approval for a loan, they are often crucial to the immigration process in the United States, as they verify a foreign national’s employment history or plans.
Applicants for an employment-based status, such as an H-1B or an EB-2, may need verification that they will be working for a U.S. company while living in America on an nonimmigrant or immigrant visa. Additionally, family-based visa petitioners may need an employment verification letter to show that their noncitizen relative will not be on the public charge.
No matter the reason for the needed proof of employment, it is important to make sure that the letter has the proper format and contents. If you request a verification letter from your employer, and it is written incorrectly, you could have your immigration petition delayed or denied by the USCIS.
What is an employment verification letter (EVL) for a visa?
An employment verification letter, or EVL for short, is a document penned by a company to prove that an immigration applicant is, or will be, gainfully employed by the organization. Some employers may refer to this document as an experience letter or proof of employment letter.
Depending on the type of immigration visa and the circumstances of employment, a letter can come from the human resources department of a company, or directly from the foreign national’s supervisor.
EVL vs. EAD
The employment verification letter (EVL) should not be mistaken for an employment authorization document (EAD). The EVL provides proof that an employee is working for a certain company; whereas, the EAD is evidence of being allowed to work in the United States.
Therefore, if an immigrant worker is trying to get a job, they can present an employer with their EAD to show that they can legally work for the company. The EVL, on the other hand, would be written by a company to prove to the USCIS that their worker is employed by them.
Contents of a sample employment verification letter
There is no set way that an employment verification letter must be written. In fact, there are many and varied sample EVLs floating around the internet. However, some examples of employment verification letters may be deficient. If an applicant for a visa or green card is not careful, they could submit a letter to the USCIS that is lacking in required information.
By way of basics, an employment verification letter should be typed on company letterhead that includes the name of the employer, as well as their address and telephone number. Other important components of an EVL include the following:
If you are unsure about how to request an employment verification letter from your employer, you might consider speaking with your company’s human resources department. A knowledgeable immigration attorney can also guide visa and green card seekers in the right direction.
Common mistakes with employment verification letters for the USCIS
Although the USCIS does not offer a template for an employment verification letter, those who submit faulty letters may be informed about the deficiency in a Request for Evidence (RFE) letter. In order to avoid delays in the immigration process, it can be important to put the EVL on letterhead, so that it looks official.
Moreover, submitting a letter to the USCIS that is typed, but has no original, handwritten signature of the writer, may cause an adjudicator to question its authenticity. A skilled Los Angeles immigration lawyer can review an employment verification letter before it is mailed to the USCIS. By having experienced professionals look over your documents, you can save yourself from the hassle of having to redo them later in the process.
How does CSPA protect children from aging out?
We all know that the wheels of government organizations can turn slowly. The United States Citizenship and Immigration Service (USCIS) is no different. Considering the number of months, or even years, that the immigration process can take, often children who are young at the time of application may have reached adulthood by the time they are eligible for an adjustment of status.
There are several immigration categories where an individual must be under the age of 21 to qualify. But what if they were under 21 at the time of approval but in their early twenties by the time a visa has become available? The good news is that the Child Status Protection Act (CSPA) allows for calculations that regress a young adult’s age to that which they were earlier in the immigration process.
What is the Child Status Protection Act?
The Child Status Protection Act (CSPA) was codified in 2002 to change the laws regarding who can be considered a “child” for immigration purposes. In the field of immigration, the term, “child,” refers to an unmarried person who is under the age of 21.
Whether or not a person is considered a child can be important when a foreign national is young when they apply for a green card but have turned 21 by the time the petition has been approved and they are able to adjust their status. The CSPA was enacted to protect youth from aging out while their applications for lawful permanent residency are being processed.
By allowing for different calculations of age while a green card application is being adjudicated, hardships can be prevented that would otherwise keep a young person from attaining lawful permanent resident status. The processing of immigration applications can have a long timeline, and sometimes unexpected delays can make the process even more lengthy.
Now that the Child Status Protection Act has become part of immigration law, aged-out child green card applicants can feel more at ease with the processing period of their USCIS forms, because their age will be calculated according to a separate formula. Even if they age out beyond 21 years old, they may still qualify for lawful permanent resident status.
On November 13, 2020, the USCIS issued new guidance on CSPA age determination and the Sought to Acquire requirement.
Who may benefit from the CSPA?
Individuals who are aged-out children may benefit from CSPA calculations when adjusting their status to a green card, so long as their Form I-485 or the underlying approved petition was filed on or after August 6, 2002. Underlying green card petition forms for which CSPA calculations would apply are the following:
If an underlying green card application has a final action date that is earlier than August 6, 2002, CSPA aged-out child calculations may not apply. However, a notable exception is when the foreign national files the Form I-485 after August 6, 2002, even though the underlying petition was approved prior to the enactment of CSPA.
Ways to Calculate the Age of the Child
The USCIS policy manual provides a variety of scenarios in which a foreign national would need to calculate a child’s age with regard to CSPA. Calculations for aged-out children can vary depending on the category under which they applied for an immigrant visa.
Applications Involving Immediate Relatives
In order for an aged-out child to calculate their years based on the Child Status Protection Act, the foreign national must have remained unmarried. Furthermore, the applicant for adjustment of status must have been younger than 21 years old and unmarried when their Form I-130 or I-360 form was originally filed. If the filing date was prior to the enactment of the CSPA, then the I-485 application to adjust status should have been submitted after August 6, 2002.
When a child is a derivative beneficiary of a Form I-130 based on a parent’s marriage to a U.S. citizen or lawful permanent resident, who subsequently dies before the child and foreign national parent can adjust their status, this application can be converted to a Form I-360 widow(er) petition, of which the child would be a derivative beneficiary. In such cases, the Child Status Protection Act can still be applied to an unmarried, aged-out child.
To calculate a child’s age under CSPA in this category, it is fairly simple. For immediate relatives and immediate relative self-petitioners or derivatives that qualify under the Violence Against Women Act (VAWA), a child’s age is solidified on the date that the Form I-130 is filed. However, if a petition must be converted to a Form I-360 widow(er) petition, the child’s age is frozen on the date of conversion.
For example, if a child’s mother marries an American citizen, and then the child is a derivative beneficiary of their mom’s Petition for Alien Relative, which is filed on December 1, 2018 when the child is 15 years, 10 months old, their age is frozen at that age for purposes of the petition, regardless of when they adjust their status to a green card. However, if the American citizen passes away 11 months later on November 1, 2019, and the foreign national’s widow’s petition converts to an I-360 application, the child’s age will be fixed at 16 years, 9 months old. It is important that the child be under 21 and unmarried on the date of the conversion from the Form I-130 petition to the Form I-360 widow(er) filing.
Derivative Asylees and Refugees
The CSPA calculation of the age of children who are derivative beneficiaries of applications for asylum or registration of refugee status is similar to that of immediate relatives, and offspring of widows or widowers.
Under the Child Status Protection Act, an unmarried person who is under the age of 21 at the time of filing the principal’s Application for Asylum and for Withholding of Removal (Form I-589) will be considered a child when it is time to adjust their status to a green card. Even if the derivative asylee has aged-out by the time a visa is available to them, their age will have been fixed at the date of filing of the principal’s I-589 application, rather than the date of the Form I-730, Refugee/Asylee Relative Petition or the Form I-485, which is used to adjust status.
The principal asylee should be sure to list the child on their original Form I-589, in order to fix the youth’s age at the time of filing. Otherwise, an aged-out child will need to overcome this failure to list them on the original application by providing proof of a parent-child relationship and age, as well as a reasonable explanation about why the son or daughter was omitted from the Form I-589 when it was filed.
For example, a child’s father files a Form I-589 on January 1, 2014, and includes their son as a derivative beneficiary on the form. On January 1, 2014, the boy is 18 years, 2 months old. A visa becomes available on January 1, 2017 when the boy is 21 years, 2 months old, and he is not married. That means that the father can include his son as a derivative asylee when he files to adjust his status to lawful permanent residency. Even though the unmarried son has aged-out, under the CSPA he will be viewed as a child that is 18 years, 2 months old, because that was his age at the time of filing the original application.
For derivative refugees, the CSPA calculation is even simpler. As with the asylum application, a child’s age is fixed on the date of filing of the Form I-590, Registration for Classification as a Refugee. Even if the child is over the age of 21 by the time the refugees are able to adjust their status to a green card, they have not aged out under the Child Status Protection Act. Moreover, a derivative refugee is free to get married, as they do not need to remain unmarried until they get their green card. Under Section 209 of the Immigration and Nationality Act, derivative refugees can be married at the time of filing their Form I-485 to adjust their status.
As with derivative asylees, an unmarried child refugee who is under the age of 21 should have been listed on the original Form I-590. Otherwise, if they are aged-out when a visa becomes available, they will need to demonstrate that there is a parent-child relationship, provide proof of age, and explain why the youth was omitted from the principal’s original Registration for Classification as a Refugee.
Family, Employment-based, and Diversity Visa Applications
The Child Status Protection Act applies differently to persons who have applied for green cards based on family, employment, or the Diversity Visa program. With these types of petitions, a child’s age does not freeze in time when the application is filed. Instead, there is a mathematical formula to calculate the adjusted age of a seemingly aged-out unmarried child.
Also, for the CSPA to apply to an aged-out child, they must have applied to adjust their status to a green card within one year of a visa becoming available. This is called the Sought to Acquire requirement.
To calculate the age of a child who has applied for a green card based on family, employment, or the Diversity Visa program, the formula is as follows:
Age at time of visa availability minus (-) Pending Time = CSPA Age
It is notable that, although a child needs to apply for an adjustment of status to benefit from the Child Status Protection Act, the date that they file their I-485 form does not factor into the equation to determine their CSPA age. Although a green card derivative beneficiary may have several approved petitions, they must calculate their CSPA age based on the application for which a visa is available.
To figure out the appropriate CSPA age of a child, one must first determine the Pending Time. The Pending Time is not how long it takes for a visa to become available. In actuality, Pending Time is the duration of time between the filing of the green card application and the date of its approval. So if a foreign national files a green card application on January 1, 2019, and after one Request for Evidence (RFE) letter and a response to it, they receive a notice of approval dated February 1, 2020. Therefore, the Pending Time is 1 year, 1 month, because that is the amount of time from filing to approval.
For example, a foreign national computer programmer files an EB-2 second preference employment-based Form I-140 on September 1, 2002, a date which is after the enactment of the Child Status Protection Act. He includes his daughter on his Form I-140 as a derivative beneficiary. His daughter is 3 years, 6 months old on the date of filing. The petition is approved 3 years, 3 months later on December 1, 2004. The computer programmer checks the Visa Bulletin for December 2020 and finds that he is finally eligible for an immigrant visa, according to his Priority Date. When he files his Form I-485 to adjust his green card in December 2020, his daughter is 21 years, 9 months old.
Therefore, the computer programmer’s daughter is still considered a child under the CSPA. Even though her real age is actually 21 years, 9 months old, she has not aged-out. Per CSPA, the daughter is still a 19 year, 6 month old “child.” The Child Status Protection Act has made it possible for her to still qualify as a derivative beneficiary.
Sought to Acquire Requirement
In addition to meeting the CSPA age requirement, and in some categories, remaining unmarried, there is also a mandatory criteria that foreign nationals intend to adjust their status to a green card within one year of a visa becoming available.
To meet the Sought to Acquire requirement, a foreign national can do any one of the following:
If you are a professional, either within the United States or abroad, you might be interested in gaining lawful permanent residency through employment. Many employment-based green card holders had an American company petition for them on their behalf, while other professionals filed the green card application themselves.
To live and work in the United States while you wait for a green card through employment, you might consider getting a temporary nonimmigrant visa that allows you to remain in the country while you work for a U.S. organization for a limited amount of time. There are many options for foreign national professionals to acquire an employment-based green card.
Employment-Based Green Cards in the United States
An employment-based green card may be appropriate for an employee who wants to work in the United States under lawfully recorded permanent residency status. Often this type of authorization requires a job offer and a labor certification by the hiring company.
As such, for many green cards acquired through employment, the petitioner is an employing U.S. company, rather than the foreign national. However, there are some employment-based green card applications that allow for the employee themselves to self-petition for lawful permanent residency in the United States.
No matter who is the petitioner, an employment-based green card is applied for using Form I-140, Petition for Alien Worker. The evidence that must accompany the I-140 form will depend on the type of employment-based green card that is being sought. Unfortunately, the Form I-140 and accompanying evidence must be submitted to the USCIS by mail, as there is currently no online employment-based green card application.
Labor Certifications for United States Employers
An employment-based green card in the United States frequently requires a labor certification. According to the USCIS, a labor certification is the responsibility of the employing organization, rather than the worker.
Certified permanent labor certifications can be obtained from the United States Department of Labor Employment and Training Administration (ETA). A labor certification is also called a PERM, or an ETA 9089, after the form that must be completed to obtain the permanent labor certification.
PERMs are intended to make sure that American employees and the U.S. labor market in general are not negatively impacted by the granting of a green card through employment. The United States government requires these labor certifications to ensure that foreign nationals are not taking the jobs of equally qualified Americans.
Green Cards That Do Not Require a Labor Certification
In order to avoid the labor certification requirement, a United States worker might consider petitioning under EB-1 classification. To do so; however, they must prove that they are a member of one of the following categories:
An E-2 visa is a nonimmigrant visa. This means that it is valid for a fixed amount of time. Also called the treaty investor visa, it allows an E-2 visa holder to finance a significant amount of capital in a business in the United States. The E-2 visa applicant must be able to show that the money was obtained lawfully. They must also demonstrate that their existing or proposed venture is a bona fide enterprise.
A treaty investor must be from a nation that appears on the E-2 visa country list. If you have the nationality of a qualifying treaty country, and you are willing to invest a substantial amount of money in an American business, an E-2 visa might be an appropriate choice for you. The USCIS also awards these nonimmigrant visas to certain essential employees from E-2 visa countries, so that they may work for a qualifying business in the USA.
The USCIS E-2 visa can last for two years; however, an E-2 visa holder may obtain renewals in increments of up to 24 months. There is no maximum number of times that an E-2 visa holder can extend their stay. Additionally, E-2 treaty investors who travel abroad may receive a two-year period of readmission when they return to the United States.
If you meet the E-2 visa requirements for the USA, you may also be able to include your spouse and dependents in the E-2 visa process. Treaty investors, as well as their essential employees, may bring with them their spouses and their dependents that are under the age of 21. Family members who seek a dependent visa do not have to be of the same nationality as the E-2 visa holder.
You might qualify for an E-2 visa if you come from a country that appears on the E-2 visa list and have substantial capital to invest. Contact an E-2 visa lawyer to discuss your interests in a business enterprise in America.