I-601A – Application for Provisional Unlawful Presence Waiver
Unlawful presence can have lengthy and serious consequences — it can result in being barred from returning to the U.S. during your consular interview. However, the Form I-601A allows you to apply for a waiver of the unlawful presence bar before needing to leave the U.S.
Schedule a consultation with one of our immigration attorneys.
What is an I-601A Waiver?
The I-601A provisional waiver is meant to deal with only one ground of inadmissibility which is unlawful presence as found within US immigration law.
An I-601A provisional waiver allows certain immigrants to request a waiver of their unlawful presence. This includes qualifying relatives (spouses and children) of U.S. citizens or permanent residents.
Normally, an applicant over the age of 18 who has overstayed in the U.S. for 180 days or more, but less than 365 days, is barred from returning to the U.S. for three years. An applicant who has overstayed for more than a year can be barred for ten years. In some cases, such as trying to reenter the U.S. after having accrued more than one year of unlawful presence, the bar may even be permanent.
What is the process for an I-601A Waiver?
Start by submitting the I-130 Petition for Alien Relative to the USCIS.
Once approved, your case is transferred to the National Visa Center for consular processing. After you pay the Affidavit of Support (AOS) fee and the Immigration Visa (IV) application fee, you submit the I-601A waiver.
It can take several months to submit an I-601A waiver. The process can be a difficult and arduous one, simply due to the documentation required to prove your case. There are many different supporting documents and evidence needed to make a successful case for a provisional waiver. In addition, when you file for a provisional waiver, you are disclosing your contact information to the government — this can be daunting, especially without an experienced attorney to advocate for you.
Who qualifies for the I-601A waiver?
In order to qualify for an I-601A waiver, a person must be:
-At least 17 years old
-Physically present in the U.S. to file the form I-601A application and provide biometrics
-Be in the process of obtaining their immigrant visa, and have a case pending
-Not have any additional grounds for inadmissibility
-Demonstrate that refusal of their admission will cause extreme hardship to their U.S. citizen or permanent resident relative
-Not in removal proceedings that are pending or haven’t been administratively closed
-Not have a final order of removal, exclusion, or deportation
It’s important to note that the I-601A waiver, by itself, does not provide lawful status in the United States, nor does it authorize you to work in the U.S. Its sole purpose is to excuse an applicant’s illegal stay in the U.S. Additionally, note that approval of your provisional waiver does not mean that your case itself is approved. Once your waiver receives approval, you will need to leave the U.S. and visit a consular office for your visa interview.
Have you accrued unlawful presence and wonder if you qualify for an I-601A waiver?
Let our experienced immigration attorneys guide you through the I-601A waiver process.
Frequently Asked Questions
In addition to the appropriate forms and filing fee, you must also provide the required initial evidence. This includes:
-Proof of your relationship to your qualifying relative
-Proof of extreme hardship to your relative if your admission is refused
-Proof of citizenship or lawful residence of your relative
-Proof of your admission or parole
-Proof that your case warrants a favorable exercise of discretion
There are two primary types of unlawful presence under Section 212 of the Immigration and Nationality Act (INA). Unlawful presence means the time a noncitizen remains in the United States without proper authorization.
Unlawful Presence for 180 Days to Less Than One Year:
A noncitizen who accrues unlawful presence for more than 180 days but less than one year and then voluntarily departs the United States before removal proceedings are initiated is barred from reentering the United States for three years.
Unlawful Presence for One Year or More:
A noncitizen who accrues unlawful presence for one year or more, whether continuously or in aggregate, and then leaves the United States is barred from reentering for 10 years.
Both types of unlawful presence can have serious consequences for future immigration applications, such as applying for a visa, adjustment of status, or other immigration benefits.
Your I-601A waiver is approved based on one primary factor, proof of hardship. The I-601A waiver letter is an important part of the I-601A waiver application process. This letter explains why the applicant needs the waiver and highlights the extreme hardship that would be caused to their qualifying relative (usually a U.S. citizen or lawful permanent resident spouse or parent) if they were not granted the waiver. Extreme hardship can be emotional, financial, medical, and hopefully, a combination of these and many other factors.
While not all hardships are equal and family situations are different, extreme hardships means those beyond what happens if you or your loved one left the United States. It is valid when you can demonstrate humanitarian reasons or extreme hardships you, your spouse, family, or parent will suffer in your personal statement. For example, you are the primary caregiver for a child or elderly parent in the United States or your absence impacts your family’s well-being.
We’re here to help you navigate the waiver process with experience and compassion.
