Since 2013, certain aliens who are only inadmissible based on the 3-year or 10-year unlawful presence bar may seek a provisional unlawful presence waiver while present in the United States by filing Form I-601A, Application for Provisional Unlawful Presence Waiver. An approved provisional unlawful presence waiver is not effective unless and until the alien departs from the United States, appears for the immigrant visa interview scheduled by the Department of State (DOS), and is determined to be otherwise eligible for an immigrant visa by the DOS officer.
If you receive a request for evidence (RFE) relating to a pending I-601A, this does not necessarily mean your application is deficient substantively. RFEs are readily available in template form and are easily generated by the reviewing officer. As you can see in a recent RFE below, its content is not uniquely tailored to an applicant’s set of facts or circumstances situation. The same template may apply to almost any waiver application at the officer’s discretion with minor modifications.
In many of our cases, we find clear and convincing evidence of extreme hardship in both scenarios: separation and relocation. For example, the US citizen spouse has never been to or is fluent in the language of the applicant’s home country. Coupled with poor and violent country conditions, the hardship associated with relocation would rise to the level of extreme. Moreover, the I-601A applicants in many of our cases are often the main breadwinners in the family, and as such, the qualifying US relative being separated from the applicant (if applicant moves back to home country) would also endure extreme financial hardship.
Yet, in many of the RFEs, USCIS still wants the qualifying relative to pick one of the two options as if one choice may lead to a lower degree of hardship. This is absurd and violates the current policy guidance of granting I-601A approval if there’s evidence of extreme hardship in both relocation and separation scenarios. But because RFEs are easily generated, many have to deal with picking the lesser of two evils.
In responding to an RFE that involves picking between relocation or separation, it’s important to work with your attorney and prepare a response that is clear and convincing as to the final decision. Moreover, additional supporting documents highlighting extreme hardship in that chosen scenario should also be submitted including mental health assessment, additional affidavits from family and friends, and extreme hardship documents pertaining to any children, as applicable.
We successfully responded to the above RFE and the I-601A was approved about a month after the response was filed. If you have questions relating to an I-601A RFE, please contact us for assistance.
