The I-601A, Provisional Unlawful Presence Waiver
If you have been in the United States unlawfully for more than 6 months then you may be subject to an immigration time bar. In short, an immigration bar prevents you from lawfully reentering the United States, or achieving lawful status in the United States, without some form of waiver.
If you are the immediate relative of a U.S. citizen, you may be eligible for a provisional unlawful presence waiver.
When a provisional unlawful presence waiver is granted, United States Citizenship and Immigration Services (USCIS) legally forgives the applicant for his unlawful presence in the United States and waives his time bar.
Unlawful presence refers to the time you spend in the United States illegally. For example, if you did not leave the United States when your visa expired or crossed the border without permission, you have accrued unlawful presence.
The amount of unlawful presence you have is important because it determines if you are eligible for a bar from the United States. For instance, an unlawful stay of 180 days or more warrants a 3 year bar and a stay of 365 days or more gets a 10 year bar. Basically, a time bar will make you inadmissible unless you apply for and receive a waiver.
What is the I-601A Provisional Unlawful Presence Waiver?
Before March 2013, immigrants who were subject to a time bar and wanted to apply for a waiver had to leave the United States and apply for the waiver in their home country. Ultimately, this meant that the immigrant had to spend time away from his United States family while awaiting a decision on his waiver application.
Because it is not in the United States interest to break up families for such long periods of time, it created the provisional waiver. With the I-601A Provisional Waiver, you do not have to wait abroad for a decision on your waiver application. Instead, you may file your waiver application prior to leaving the country and having a visa interview.
While USCIS considers your I-601A waiver application, you will be able to stay in the United States with your family. While this is the most ideal situation, you can only apply for a provisional waiver if you meet the eligibility requirements provided by USCIS.
Traditional waivers, filed after the immigrant has left the country, are still available in many circumstances.
How Do I apply for the I-601A Provisional Unlawful Presence Waiver?
To begin, USCIS requires you to prepare and file Form I-601A Application for Provisional Unlawful Presence Waiver. Just make sure that you are eligible for the waiver before you apply.
In order to be eligible for an I-601A Provisional Waiver, you must be the close relative of a United States citizen and can only be inadmissible because of your unlawful presence.
For example, if you are inadmissible because you committed a crime, then you are not eligible for the provisional waiver.
You must also meet the following requirements:
- You are currently present in the United States
- You are at least 17 years old
- You are the spouse, unmarried child, or parent of a United States citizen
- USCIS has already approved your I-130 or I-360 petition which established your qualifying relationship
- You have an immigrant visa case open with the State Department and have already paid any applicable fees
If you meet these requirements, you may file Form I-601A. Along with your application, you must provide USCIS with proof that your U.S. citizen relative will suffer an “extreme hardship” if you are barred from the United States.
“Extreme hardship” is a legal term that has been defined and redefined by decisions of immigration judges and immigration officers. Extreme hardship is often a difficult thing to prove, and generally extends beyond financial hardship and other aspects that usually make a family’s life more difficult in the event of a deportation.
Because you’ll need to enter the world of legalese to appropriately explain how your absence might cause “extreme hardship,” we highly advise I-601A applicants to hire an attorney.
A good attorney will also know whether your case is likely to fit in the definition of “extreme hardship” and tell you whether or not it is worth it to proceed.
In addition to proof of extreme hardship, you’ll also need to include the following pieces of evidence:
- An immigration visa processing fee receipt from the U.S. Department of State including the National Visa Center case number
- A copy of your Form I-797 Notice of Actions which indicates that your Form I-130 or Form I-360 has been approved
- The application fee of $585 (which is subject to change)
- Proof of a qualifying relationship with your relative; and
- Proof of your relative’s citizenship status.
Your application may be rejected if you forget to include any of these items. USCIS also rejects waiver applications when the applicant makes common mistakes such as failing to sign and date the application.
We regularly assist clients with I-601A waivers and, as immigration attorneys, we can help clients from all 50 states. We highly recommend that you hire a competent immigration attorney to assist with any kind of waiver application.
What Happens After USCIS Makes A Decision?
If your provisional waiver is granted, you will be able to leave the United States to attend your immigration visa interview knowing that you will not be barred from reentering on the basis of your previous unlawful presence in the U.S.
If the U.S. Consulate or Embassy approves your visa application after your interview, you will be able to return to the United States immediately.
If, on the other hand, USCIS denies your petition for a waiver, there is no requirement for you to leave to attend your interview. However, you should be aware that it is possible for USCIS to initiate removal proceedings against you. If this occurs, seek legal help.
It’s possible that an attorney could help you win an I-601A waiver on an appeal or a second application.