The I-601A Provisional Unlawful Presence Waiver Process

In order to have the best chance at receiving a waiver, it is crucial that you speak with an attorney.

The I-601A Provisional Unlawful Presence Waiver Process

If you are the immediate relative of a United States citizen and are applying for an immigrant visa after you have stayed in the United States unlawfully (without permission to be here) for more than 180 days, you may be able to apply for an I-601A Provisional Unlawful Presence Waiver before you leave the United States.

If the United States Citizenship and Immigration Services (USCIS) decide to grant your waiver, you will not be barred from re-entering the country when you leave to complete your immigrant visa interview.  If USCIS does not grant your waiver, on the other hand, you may be barred from the United States for 3 years, 10 years, or even permanently, due to your unlawful stay.

It may be intimidating to apply for the provisional waiver because in essence you are admitting to USCIS that you have stayed in the United States unlawfully. In order to have the best chance at receiving a waiver, it is crucial that you speak with an attorney.

Immigration attorneys see these types of situations often and can explain in detail all your options and how best to prepare a waiver application. Immigration law is federal, so that means you can hire any immigration attorney in any state in the U.S.

We would definitely love to help you with your provisional waiver application, even if you live in another state.

When Do I Apply For an I-601A Provisional Waiver?

Timing is very important when applying for an I-601A provisional waiver.  The waiver is for individuals who are seeking an immigrant visa, but will be deemed inadmissible because of their unlawful stay in the United States.

This means that someone, typically your U.S. citizen spouse, has petitioned for you to become a permanent resident by filing form I-130. When your I-130 petition is approved, your case is transferred to the National Visa Center, which helps you coordinate your immigrant visa application.

In short, when you apply for an immigrant visa, you will be required to attend an interview at a U.S. Embassy or consulate in your home country.  If you have resided in the United States without permission for 180 days or more before your interview, you should speak to an attorney about waiver options before you leave the United States.  Otherwise, you may be barred from returning to the country.

If you leave the United States before filing Form I-601A with USCIS or before USCIS gives you a decision, you will not be eligible for a provisional waiver.

You are also not eligible to apply for a provisional waiver if:

  • You have a green card application pending
  • You are currently in removal proceedings or subject to removal or deportation upon a final order
  • The U.S. Department of State’s first attempt to schedule your immigrant visa interview was before January 3, 2013
  • You are inadmissible for reasons other than an unlawful presence in the U.S.

If any of these conditions apply to you and you submit your application anyways, USCIS will reject your application.  It will also reject your application if you submit other applications with your waiver application.

How Do I Apply For an I-601A Provisional Waiver?

Not only do you need to be physically present in the United States when you apply for the provisional waiver, but you must also be the immediate relative (spouse, parent, or unmarried child under the age of 21) of a United States citizen.  For example, if your spouse is a permanent resident, you can’t apply for a provisional waiver because you are not eligible.

If you meet these two requirements, there are three key steps to apply for a provisional waiver:

  • Have Form I-130 Petition for Alien Relative filed by your U.S. citizen relative listing you as the beneficiary
  • Pay your immigrant visa processing fee to the U.S. Department of State
  • File Form I-601A Application for Provisional Unlawful Presence Waiver with proof of extreme hardship

Form I-130 Petition for Alien Relative

First thing is first, before you can ask for a waiver, you must establish that you and your U.S. citizen relative have a qualifying relationship. This is done on Form I-130 Petition for Alien Relative.  Your U.S. citizen relative has to file Form I-130 and it must be approved by USCIS before you can apply for a waiver.

When USCIS has approved your Form I-130, it will send you a receipt called Form I-797 Notice of Actions.  Make sure you make a copy of your Form I-797 to include with your I-601A application.

You also want to make sure that you alert the National Visa Center (NVC) of your plans to apply for a waiver because they are responsible for scheduling your interview at the U.S. Embassy or consulate.  If you don’t notify NVC in time, they may schedule your interview before USCIS has a chance to decide on your waiver application.

Pay Immigrant Visa Processing Fee

Next, you will have to pay your immigrant processing fee.  That’s right, you have to pay your immigrant visa fee before you know whether you will actually receive the visa or not.  We know it sounds like putting the cart before the horse, but this is what USCIS requires and this does not guarantee that they will grant you waiver.

A receipt showing that you have paid your visa processing fee, which includes your NVC case number, is what you will need to include with your provisional waiver application.

File Form I-601A with proof of extreme hardship

In addition to filling out the I-601A application, you must give USCIS proof that your United States citizen relative will be subject to extreme hardship if you are kicked out of the country for 3 years, 10 years, or permanently.

Be advised that this is not an easy task.

The term “extreme hardship” is a legal term of art that has a very specific meaning. It is one of the many different kinds of hardships that exists on the spectrum of hardships in immigration law, and is somewhere between “unusual hardship” and “extreme and exceptionally unusual hardship.”

If this sounds complicated, vague, or unclear, it’s because it is.

Proving extreme hardship is difficult because extreme hardship means a greater level of hardship than people who are separated by deportation would normally experience. Mental distress at the possibility of separation or financial hardship alone is generally not sufficient.

Instead, immigrants who win their I-601A cases typically have additional factors, such as members of the family with healthcare needs that would go unmet in the event an immigrant were deported for a period of 3 or 10 years.

Conclusion

As you can tell from the brief discussion above, successfully filing an I-601A Provisional Unlawful Presence waiver can be very difficult. For this reason, we always recommend that you hire an attorney in the event you need an immigration waiver.

Need an attorney?

Our articles provide general information about all of our practice areas. If you're looking for legal counsel specific to your situation, you'll need to talk to a lawyer.

Share This