Do I Need an I-601A Provisional Waiver?

If you have been unlawfully present in the United States, you may be subject to either a three-year time bar or a ten-year time bar. If you are subject to a time bar, you will need to apply for a waiver.

Do I Need an I-601A Provisional Unlawful Presence Waiver?

If you have been unlawfully present in the United States and you are the beneficiary of an immigrant petition, you may need to take a few additional steps to be approved for an immigrant visa. Being present in the United States without permission makes you “inadmissible.” Fortunately, being on the “inadmissible” list is not always the end of the line. You may apply for a waiver.

For more information on inadmissibility, visit our page “What If My Fiancé Is Inadmissible to the United States.”

Who Needs an Unlawful Presence Waiver?

The duration of your unlawful presence determines whether you are subject to either the three or ten year bar.

  • The three-year time bar applies to you if your unlawful presence lasted more than 180 days, but less than one calendar year.
  • The ten-year time bar applies if your unlawful presence lasted more than one year.
  • If your unlawful stay in the United States was documented by immigration officials, and after being removed you tried to unlawfully re-enter the United States again, you are not eligible for waiver or re-entry to the United States. This is called the “Permanent Bar”.

If you are subject to a three- or ten-year time bar you may need to file an I-601A waiver.

Waiver Exceptions

As with every rule, there are some exceptions to the unlawful presence time bars. If your unlawful presence in the United States occurred before April 1, 1997 then you do not need to file a waiver application. On this date, penalties for unlawful stay went into affect and did not apply retroactively.

If you have accrued unlawful status for less than 180 continuous days, you do not need to obtain a waiver because you are not subject to any time bar.

Waiver Options: I-601A Versus I-601

There are two waivers for immigrant visa applicants who have had unlawful time in the United States. If your unlawful stay in the United States has ended and you have returned to your home country, you may need to file the I-601 Application for Waiver of Grounds of Inadmissibility. The I-601 waiver can be used for unlawful presence, as well as a number of other grounds of inadmissibility.

If you are currently unlawfully present in the United States, and you are the beneficiary of a spousal immigrant petition filed by a U.S. Citizen, you will need to file the I-601A Application for Provisional Unlawful Presence Waiver.

Of note, currently the Provisional Unlawful Presence Waiver is only available to spouses of U.S. citizens. President Obama’s Executive Action announced on November 22, 2014 may extend the Provisional Unlawful Presence Waiver process to spouses of permanent residents.

The remainder of this article will discuss the I-601A waiver process.

Eligibility for the I-601A Provisional Unlawful Presence Waiver

There are several requirements for the I-601A waiver. An applicant for I-601A waiver must:

  • Be the immediate relative of a U.S. citizen (Spouse, child or parent)
  • Have already been approved for an immigrant visa and paid the appropriate visa processing fee
  • Not qualify for any other reasons for inadmissibility (The I-601A cannot be filed with any other waivers for admissibility). Essentially, you can file the I-601A if the only grounds of inadmissibility applicable to you are unlawful presence.
  • Be able to explain to the USCIS that their U.S. citizen relative would undergo extreme hardship if the I-601A provisional waiver is not approved.
  • Not be in the removal process

Purpose of Form I-601A

The Provisional Unlawful Presence Waiver process was created and first implemented in March of 2013. Prior to the newer I-601A process, immediate relatives of U.S. citizens who were not inspected at the U.S. border were ineligible to become a Permanent Resident through the Adjustment of Status process in the United States.

These immediate relatives were required to leave the United States and go through consular processing, meaning they would apply for a green card at a U.S. consulate or embassy in their country of origin. However, due to the immigrant’s unlawful presence in the United States, they were deemed “inadmissible” and were unable to return to the U.S. until the I-601 waiver was filed and approved.

Because it can take up to a year or even longer to approve I-601 waiver requests, immigrant family members of U.S. citizens would need to wait months and possibly even years prior to having the waiver approved, obtaining a new consular interview, and returning to the United States.

The I-601A attempted to shorten the time that immediate relatives of U.S. citizens were required to be out of the country while important immigration decisions were made. The purpose of the I-601A waiver is family unity by modifying the waiver process. Instead of applying for the waiver after an immigrant has left the U.S., had their consular interview, and been found inadmissible, the immigrant may apply for the I-601A waiver prior to leaving the country for their consular interview.

This makes it possible for immigrants to remain in the United States during the adjudication of a waiver application and shortens the time that immigration law separates families.

When to File the I-601A Waiver Application

The immigration process begins when the U.S. citizen files the I-130 Petition for Alien Relative. When the petition is approved, USCIS will notify the National Visa Center (NVC).

The NVC will send you or your attorney an email with additional information to help you login and pay for the Affidavit of Support and the  DS-260 Online Immigrant Visa and Alien Registration Application.

Once you have the Immigrant Visa filing fee receipt, you may then file the I-601A application.

How to Apply for an I-601A Waiver

The 1-601A form, along with instructions, can be found on USCIS.gov.

It is suggested to seek an attorney’s advice for the waiver process, whether you are filing the I-601A waiver or another USCIS waiver. The waiver process can be daunting and require a lot of paperwork. An attorney will be able to help you manage the paperwork and likely increase your chances of approval.

The I-601A form is six pages and requires biographic information on both the applicant and the petitioning U.S. citizen relative.

This form is unique in comparison to other USCIS forms because it asks the applicant to write, in their own words, why their U.S. citizen relatives would experience extreme hardship if the provisional waiver is not approved. Part 4 of the form provides the applicant with a little over half a page to write their statement.

In general, you will need more than half a page to craft and provide the basis for your claim that your U.S. citizen family members would suffer extreme hardship in your absence. Your application should be submitted with a well reasoned legal analysis and substantial documentation to prove your points.

You should attach your Immigrant Visa processing fee receipt and the approval form for your I-130 petition to the I-601A. You should also provide the USCIS with proof that you are an immediate relative to the U.S. citizen, proof of their citizenship, and any evidence you have that extreme hardship would happen as a result of your denial for provisional waiver.

Before sending in the application to the USCIS Chicago Lockbox facility, do not forget to attach a check or money order for the filing fee! Currently, the fee for I-601A forms is $585. You should check the USCIS website for current the fee amount before mailing.

After the I-601A Waiver is Approved

If you are approved for the I-601A provisional waiver, your visa application will be treated like any other visa application that did not have to deal with unlawful presence.

This means that you will have to return to your home country after approval. As with all other visa applicants, the process begins outside of the United States. The NVC will coordinate scheduling your interview after you finish the DS-260 Immigrant Visa Application and provide the NVC with all necessary documentation.

After your consular interview, you will have to remain in your home country until your visa application is approved. After receiving the visa stamp in your passport, you are ready to return to the United States.

Hire an Attorney

Because the I-601A waiver process is complicated and fraught with various pitfalls, it is highly recommended that you hire an attorney. An immigration attorney who is familiar with the Immigrant Visa process and waiver applications can verify that you really do need to file the I-601A, prepare the I-601A application with a strong legal analysis and sufficient evidence, and help you understand whether you are on good legal footing to have your I-601A application approved.

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