Fourth Circuit Rules I-601A Applicants Are Not Automatically Protected From Removal

The Fourth Circuit Court of Appeals has ruled that pursuing a provisional unlawful presence waiver does not automatically protect a noncitizen with a final removal order from arrest, detention, or removal. The August 14, 2026 decision in Alyse Sanchez v. Markwayne Mullin vacated a lower court ruling that had provided such protection and sent the case back for further proceedings.

What the Case Involved

The case involved U.S. citizens married to noncitizens who had final orders of removal and were pursuing family-based immigration through the provisional waiver process.

The noncitizens were required to attend USCIS appointments, including interviews related to their Form I-130 petitions. Several were arrested by ICE when they appeared for these appointments. The plaintiffs argued that the government could not arrest or remove them while they were pursuing Form I-601A provisional waivers.

A federal district court initially agreed and barred the government from arresting or removing the plaintiffs while they pursued the waiver process.

What the Fourth Circuit Decided

The Fourth Circuit rejected the argument that the I-601A regulations create an automatic "shield" against removal.

The court explained that the regulations do not expressly prohibit the government from arresting, detaining, or removing an eligible applicant while the provisional waiver process is pending. The fact that the program is intended to reduce family separation does not itself create a legal stay of removal.

The court also held that INA § 242(g), 8 U.S.C. § 1252(g), did not prevent the plaintiffs from bringing their legal challenge. However, surviving the jurisdictional issue did not mean the plaintiffs had established that the government lacked authority to execute their removal orders.

What This Means for I-601A Applicants

This decision creates a significant risk for noncitizens who have final removal orders and are pursuing family-based immigration.

Filing an I-130 or I-601A does not, by itself, guarantee protection from ICE enforcement. Applicants should not assume that attending a USCIS appointment is risk-free simply because they have a pending waiver or family petition. Technically, this ruling is only binding on states within the jurisdiction of the Fourth Circuit (Maryland, North Carolina, South Carolina, Virginia, and West Virginia); however, it is expected that other jurisdictions may take this position as well, so all applicants should take caution and consult with an immigration attorney before proceeding.

The Fourth Circuit also left open the plaintiffs' argument that the government may have used USCIS appointments to target people for enforcement. The court found that the existing evidence was insufficient to resolve that claim and remanded the case for further proceedings.

What You Should Do

If you have a final removal order and are considering an I-601A waiver, do not file the application or attend a USCIS appointment without first evaluating your risk of being detained.

Your immigration history, removal order, criminal history, pending applications, and prior interactions with immigration authorities can all affect the analysis. An attorney can help determine whether additional legal protection or a different strategy should be considered before you proceed.

For guidance regarding an I-601A waiver or a final removal order, contact Tran Flores Law at (512) 894-9984 to schedule a consultation.