Dealing with U.S. immigration can be a challenging task, especially when it comes to immigration waivers such as the I-601A Provisional Unlawful Presence Waiver. The purpose of this waiver is to alleviate the hardship faced by U.S. citizens and Lawful Permanent Residents (LPRs) who have family members seeking to obtain an immigrant visa but are subject to the unlawful presence ground of inadmissibility. The I-601A waiver can be a vital tool in keeping families together during the immigration process, and is often necessary for those who wish to apply for a family-based Green Card for their loved ones.
This article aims to provide a comprehensive overview of the I-601A Provisional Unlawful Presence Waiver, including,
Understanding the I-601A Provisional Unlawful Presence Waiver
The I-601A Provisional Unlawful Presence Waiver is a discretionary immigration benefit that allows certain eligible individuals who are subject to the 3-year or 10-year unlawful presence bars to seek a waiver of inadmissibility before leaving the United States for their immigrant visa interview at a U.S. consulate or embassy abroad. The primary purpose of the I-601A waiver is to reduce the time that eligible individuals must spend away from their family members in the U.S. while waiting for their immigrant visa applications to be processed for a Green Card.
Comparison with the Regular I-601 Waiver
The I-601A Provisional Unlawful Presence Waiver should not be confused with the regular I-601 waiver, which is filed after an individual has been found inadmissible at the time of their immigrant visa interview. While both waivers are intended to overcome the unlawful presence ground of inadmissibility to be eligible to apply for permanent residency, the I-601A waiver allows eligible individuals to obtain a provisional approval of their waiver application while still in the United States, significantly reducing the time spent separated from their family.
Why Do You Need an I-601A Waiver?
An I-601A Provisional Unlawful Presence Waiver may be required in situations where an individual has accrued unlawful presence in the United States and must depart the country to obtain an immigrant visa through consular processing. Unlawful presence is accrued when an individual stays in the U.S. beyond the period authorized by their visa, or when they enter the country without inspection. If the accumulated unlawful presence reaches 180 days or more, the individual may become subject to the 3-year or 10-year bars on re-entry, making the I-601A waiver essential in overcoming this ground of inadmissibility during the immigrant visa process.
Eligibility for the I-601A Waiver
Understanding the eligibility criteria for the I-601A Provisional Unlawful Presence Waiver is crucial for applicants seeking to overcome the bars to admissibility due to unlawful presence in the United States. In this section, we will outline the key factors that determine eligibility for the I-601A waiver, including qualifying family members, unlawful presence requirements, and other essential considerations.
Qualifying Family Members:
To be eligible for the I-601A waiver, the applicant must be an immediate relative of a U.S. citizen or Lawful Permanent Resident (LPR). Immediate relatives include spouses (marriage Green Cards), parents, and unmarried children under the age of 21. These family relationships must be established through a valid Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, approved by U.S. Citizenship and Immigration Services (USCIS) prior to filing the I-601A waiver application.
Unlawful Presence Requirements:
The I-601A waiver applicant must have accrued unlawful presence in the U.S. for a continuous period of at least 180 days but less than one year (resulting in a 3-year bar) or for one year or more (resulting in a 10-year bar). Unlawful presence begins to accrue when an individual overstays their authorized period of stay or enters the U.S. without being admitted or paroled. It is essential to understand that the I-601A waiver specifically addresses the inadmissibility arising from unlawful presence and not from other grounds of inadmissibility, such as past criminal convictions, fraud, or misrepresentation.
I-601A waiver applicants must demonstrate that their inadmissibility is solely based on unlawful presence and not on any other grounds. If other grounds of inadmissibility apply, the applicant may need to file a separate I-601 waiver application to address those issues, which typically requires a more extensive process and a longer period of separation from their family.
Extreme Hardship to U.S. Citizen or LPR Qualifying Relative:
The I-601A waiver applicant must prove that their U.S. citizen or LPR qualifying relative (spouse or parent) would suffer extreme hardship if the applicant were denied admission to the United States. Extreme hardship is a higher standard than mere inconvenience or financial loss. The USCIS evaluates factors such as:
- The health and medical condition of the qualifying relative, including ongoing treatment or care requirements.
- Financial impact on the qualifying relative, including the applicant’s contribution to the household income, loss of job or business opportunities, and the cost of living in the applicant’s home country.
- Emotional and psychological impact on the qualifying relative due to separation, including the well-being of any children involved.
- Social and cultural factors, including language barriers, religious differences, and potential discrimination in the applicant’s home country.
- Country conditions in the applicant’s home country, including political instability, violence, or lack of access to essential services.
Additional Eligibility Considerations:
- Physical Presence: The applicant must be physically present in the United States at the time of filing the I-601A waiver application and must submit biometrics at a USCIS Application Support Center.
- Age Requirement: The applicant must be at least 17 years old when filing the waiver application.
- Approved Immigrant Visa Petition: The applicant must have an approved immigrant visa petition (Form I-130 or I-360) or be selected to participate in the Diversity Visa Program.
- Pending Immigrant Visa Case: The applicant must have a pending immigrant visa case with the Department of State and paid the required processing fees (including the immigrant visa fee and the Affidavit of Support fee).
- Removal Proceedings: The applicant cannot be in removal proceedings unless the proceedings have been administratively closed, and they have not been subsequently recalendared.
It’s important to note that meeting the eligibility criteria does not guarantee approval of the I-601A waiver application, as the decision is ultimately at the discretion of U.S. Citizenship and Immigration Services (USCIS). In some cases, USCIS may request additional evidence or documentation to support the applicant’s claim of extreme hardship or to clarify any inconsistencies in the application.
It is also worth noting that, if approved, the I-601A waiver is only provisional, meaning it becomes effective only when the applicant departs the U.S. for their immigrant visa interview and is found inadmissible solely based on unlawful presence. If other grounds of inadmissibility are discovered during the consular interview, the applicant may need to file a separate waiver or face denial of the immigrant visa.
Application Process for the I-601A Waiver
The application process for the I-601A Provisional Unlawful Presence Waiver can be complex and requires a thorough understanding of the necessary forms, documentation, and fees. Here is a general guide on how to prepare and submit a strong I-601A waiver application for those who are seeking a Green Card, increasing the chances of success and minimizing the time spent apart from loved ones.
Required Forms and Documentation
To apply for the I-601A Provisional Unlawful Presence Waiver, the applicant must submit the following:
- Form I-601A, Application for Provisional Unlawful Presence Waiver: The applicant must complete and sign this form, providing accurate and truthful information regarding their eligibility and personal circumstances.
- Supporting Documentation: The applicant should submit evidence to demonstrate their eligibility for the waiver, including:
- Proof of the qualifying relationship with a U.S. citizen or LPR (e.g., marriage certificate, birth certificate, adoption documents).
- Proof of the approved immigrant visa petition (e.g., I-797 Notice of Action for an approved Form I-130 or I-360).
- Evidence of the extreme hardship that the qualifying relative would face if the applicant were denied admission to the United States. This can include medical records, financial documents, psychological evaluations, affidavits from family members or professionals, and other relevant evidence.
Filing Fees for the I-601A Waiver
As of September 2021, the filing fee for the I-601A waiver application is $630. Additionally, a biometric services fee of $85 is required for applicants under 79 years of age. Fees are subject to change, so it is essential to verify the current fees on the USCIS website or consult with an qualified immigration professional.
I-601A Waiver Process and Timeline
The I-601A waiver application and supporting documentation must be mailed to the appropriate USCIS Lockbox facility. The specific mailing address can be found on the USCIS website or in the form instructions. It is crucial to ensure that the application package is complete, well-organized, and includes all required fees to avoid delays or rejections.
Once USCIS receives the application, they will issue a receipt notice to confirm that the application is under review. The applicant will also be scheduled for a biometrics appointment at a local USCIS Application Support Center. The processing time for I-601A waiver applications can vary, but it generally takes several months for USCIS to make a decision. Applicants can check the status of their waiver application online visiting the USCIS Case Status Online website and entering your receipt number.
Preparing a Strong I-601A Waiver Application
Due to the discretionary nature of the I-601A waiver and the importance of demonstrating extreme hardship to the qualifying relative, it is crucial to prepare a thorough and persuasive application to be submitted to the U.S. immigration authorities.
Potential Outcomes of the I-601A Waiver Application
The outcome of an I-601A Provisional Unlawful Presence Waiver application can significantly impact the applicant’s future immigration prospects and their ability to reunite with their loved ones in the United States. It is essential to understand the potential outcomes and their implications when applying for the I-601A waiver.
Approval of the I-601A Waiver:
If the I-601A waiver application is approved, the applicant will receive a provisional waiver, which becomes effective when they depart the United States for their immigrant visa interview at a U.S. consulate or embassy abroad. Upon successful completion of the interview and meeting all other admissibility requirements, the applicant will be granted an immigrant visa and can then return to the United States as a Lawful Permanent Resident (LPR). It is important to note that the approval of the I-601A waiver does not guarantee the issuance of an immigrant visa or a Green Card, as the consular officer may still identify other grounds of inadmissibility during the interview.
Denial of the I-601A Waiver:
If the I-601A waiver application is denied, the applicant will not be eligible for the provisional waiver and must remain outside the United States during the standard I-601 waiver application process. The denial may be based on a failure to demonstrate extreme hardship to the qualifying relative, the presence of other grounds of inadmissibility, or other issues with the application. In some cases, applicants may be eligible to file an appeal or a motion to reopen or reconsider the decision with USCIS.
Request for Evidence (RFE):
In some instances, USCIS may issue a Request for Evidence (RFE) if they require additional information or documentation to make a decision on the I-601A waiver application. The RFE will specify the information needed and provide a deadline for submitting the requested evidence. Applicants should respond promptly and thoroughly to the RFE to avoid delays or denials of their waiver application.
Administrative Closure or Withdrawal of the Application:
In certain cases, an I-601A waiver application may be administratively closed by USCIS, often due to the applicant’s failure to appear for a scheduled biometrics appointment or respond to an RFE. Alternatively, an applicant may choose to withdraw their application for various reasons, such as a change in circumstances or a desire to pursue a different immigration strategy for a Green Card. In both cases, the applicant may reapply for the waiver, but they will need to start the process from the beginning and pay the required fees again.
Common Challenges and Issues to Consider
The I-601A Provisional Unlawful Presence Waiver process can be complicated, and applicants may encounter various challenges and issues along the way. Being aware of these potential obstacles can help you better prepare for the application process and increase your chances of obtaining permanent residency in the U.S.. In this section, we will discuss common challenges and issues that applicants may face and provide insights on how to address them effectively.
- Establishing Extreme Hardship: One of the primary requirements for the I-601A waiver is proving that the applicant’s qualifying relative would suffer extreme hardship if the waiver were denied. Applicants often find it challenging to gather sufficient evidence to demonstrate this hardship convincingly. To overcome this challenge, it is essential to collect diverse and substantial documentation that covers various aspects of your qualifying relative’s life, such as financial, medical, emotional, and educational factors.
- Inadmissibility on Other Grounds: While the I-601A waiver specifically addresses the issue of unlawful presence, applicants may still be found inadmissible based on other grounds, such as criminal history or misrepresentation. It is crucial to be aware of these potential issues and consult with an experienced immigration professional to determine if additional waivers or strategies are necessary to address them.
- Timely Submission of Required Documents: The I-601A waiver application requires several supporting documents, and gathering these materials can be time-consuming. Missing the submission deadlines may result in delays or denial of your application. To avoid this issue, start collecting your documents as early as possible and ensure that you submit a complete and well-organized application package.
- Inaccurate or Incomplete Information: Providing inaccurate or incomplete information on your I-601A waiver application may lead to delays, requests for additional evidence, or denial. It is essential to double-check all the information you provide on your application and ensure that it is accurate, complete, and consistent with your supporting documents.
- Lack of Legal Guidance: The I-601A waiver process can be complex, and navigating it without the assistance of an experienced immigration professional may result in mistakes or misunderstandings that could jeopardize your application. Seeking legal guidance can help you better understand the requirements, avoid common pitfalls, and increase your chances of success.
By becoming aware of these common challenges and issues, applicants can better prepare for the I-601A Provisional Unlawful Presence Waiver application process and increase their likelihood of obtaining a favorable outcome for their Green Card case.
Common Misconceptions About the I-601A Waiver
The I-601A Provisional Unlawful Presence Waiver process can be complex and confusing, leading to various misconceptions among applicants. Clearing up these misunderstandings is crucial to ensure that applicants have accurate information and make informed decisions throughout the application process.
- Approval Guarantees a Green Card: Many people mistakenly believe that once their I-601A waiver is approved, they are guaranteed a green card. In reality, the I-601A waiver only addresses the issue of unlawful presence, and approval does not guarantee the issuance of an immigrant visa. Applicants must still attend a consular interview and satisfy all other admissibility requirements.
- The I-601A Waiver Covers All Inadmissibility Grounds: Some applicants may assume that the I-601A waiver covers all grounds of inadmissibility. However, the I-601A waiver specifically pertains to unlawful presence. If an applicant is inadmissible for other reasons, they may need to apply for additional waivers or take other actions to address those issues.
- Applying for the I-601A Waiver Automatically Triggers Removal Proceedings: It is a common misconception that applying for the I-601A waiver will automatically initiate removal proceedings against the applicant. In most cases, USCIS will not refer applicants to Immigration and Customs Enforcement (ICE) for removal proceedings based solely on an I-601A waiver application. However, if the applicant has a criminal history, poses a threat to national security, or has other serious adverse factors, they may still be at risk of removal.
- The I-601A Waiver Is Only for Immediate Relatives: Some people may mistakenly believe that the I-601A waiver is exclusively for immediate relatives of U.S. citizens. While it is true that the waiver was initially designed for immediate relatives, the eligibility has expanded to include certain family-sponsored preference categories and employment-based immigrant visa applicants who meet specific requirements.
- The I-601A Waiver Is a Shortcut to a Green Card: Another misconception is that the I-601A waiver offers a quick and easy path to obtaining a green card. In reality, the waiver process can be complex, and applicants must still go through consular processing and meet all other requirements for an immigrant visa. The I-601A waiver is merely a tool to help overcome the inadmissibility issue related to unlawful presence.
Addressing these common misconceptions can provide applicants with a more accurate understanding of the I-601A Provisional Unlawful Presence Waiver process and help them make better-informed decisions throughout their immigration journey towards achieving permanent residency in the U.S..
How an Immigration Lawyer Can Help
The I-601A Provisional Unlawful Presence Waiver process can be complex and challenging, with high stakes for applicants and their families. Engaging the services of an experienced immigration lawyer can significantly improve the chances of success and streamline the process. Below are some of the ways in which an immigration lawyer can assist with the I-601A waiver application process.
- Assessing Eligibility: An immigration lawyer can evaluate the applicant’s specific situation and determine their eligibility for the I-601A waiver. This includes identifying the qualifying relative, determining whether the applicant meets the unlawful presence requirements, and assessing any other potential grounds of inadmissibility that may impact the application.
- Building a Strong Case for Extreme Hardship: One of the most critical aspects of the I-601A waiver application is demonstrating extreme hardship to the qualifying relative. An immigration lawyer can help identify and gather the most compelling evidence to present a persuasive case. This may include drafting personal statements, obtaining expert opinions, and organizing the supporting documentation in a clear and logical manner.
- Completing and Submitting Application Forms and Documentation: An immigration lawyer can guide applicants through the process of completing the required forms accurately and truthfully. They can also ensure that all necessary supporting documentation is included in the application package, reducing the risk of delays, RFEs, or denials due to incomplete or inaccurate submissions.
- Responding to Requests for Evidence (RFEs): If USCIS issues an RFE, an immigration lawyer can help the applicant understand the specific information requested and formulate a thorough and timely response. This increases the likelihood of a favorable decision on the waiver application.
- Advising on Consular Processing and Immigrant Visa Interviews: Once the I-601A waiver is approved, the applicant must attend an immigrant visa interview at a U.S. consulate or embassy abroad. An immigration lawyer can provide guidance on the consular processing steps, help prepare for the interview, and address any potential issues that may arise during this phase of the process.
- Exploring Options in Case of Denial: In the event of a denial, an experienced immigration lawyer can help explore available options, such as filing an appeal, a motion to reopen or reconsider, or pursuing alternative immigration strategies.
- Providing Peace of Mind: The I-601A waiver process can be stressful and emotionally draining for applicants and their families. Working with an immigration lawyer can provide peace of mind, knowing that a knowledgeable professional is guiding them through the process and advocating for their best interests.
An experienced immigration lawyer can be instrumental in successfully obtaining a Green Card through the I-601A waiver process, minimizing the time spent separated from loved ones, and overcoming the challenges involved. By offering expert guidance, support, and representation, immigration lawyers can help applicants navigate the complex process and reunite with their families in the United States.
If you believe you or a loved one may be eligible for the I-601A Provisional Unlawful Presence Waiver or have questions about your specific immigration situation, don’t hesitate to take action. At Glenn Immigration Law, our experienced immigration lawyer in Atlanta, Pepper Glenn, is ready to provide personalized guidance, help you navigate the complex waiver application process, and increase your chances of a successful outcome.
I-601A Waiver FAQs
The I-601A Provisional Unlawful Presence Waiver process can be complex and raise various questions for Green Card applicants and their families. To provide a better understanding of the waiver process, we have compiled a list of frequently asked questions and their answers.
What is the difference between the I-601 and I-601A waivers?
The I-601 Provisional Unlawful Presence Waiver is a standard waiver for various grounds of inadmissibility, including unlawful presence. It is filed after the applicant has attended their consular interview and received a finding of inadmissibility. The I-601A waiver, on the other hand, is a provisional waiver specifically for the unlawful presence ground of inadmissibility. It allows eligible applicants to apply for the waiver while still in the United States and receive a decision before attending their consular interview.
How long does the I-601A waiver process take?
The processing time for an I-601A Provisional Unlawful Presence Waiver can vary depending on several factors, such as the workload at the USCIS service center processing the application and the complexity of the individual case. On average, the processing time for I-601A waivers ranges from 6-12 months. However, this time frame is subject to change, and applicants should check the USCIS website for the most up-to-date processing times.
Can I work while my I-601A waiver application is pending?
If you have a valid Employment Authorization Document (EAD) based on a separate immigration status or benefit (e.g., DACA or Temporary Protected Status), you may continue to work while your I-601A Provisional Unlawful Presence Waiver application is pending. The I-601A waiver application itself does not grant employment authorization.
Can I travel outside the U.S. while my I-601A waiver application is pending?
It is generally not recommended to travel outside the United States while your I-601A Provisional Unlawful Presence Waiver application is pending, as it may result in the abandonment of your application or complications with re-entry.
What happens if my I-601A waiver is denied?
If your I-601A Provisional Unlawful Presence Waiver is denied, you are not eligible for the provisional waiver and must remain outside the United States during the standard I-601 waiver application process. You may also have the option to file an appeal, a motion to reopen, or a motion to reconsider the decision.
Can I apply for the I-601A waiver more than once?
Yes, if your I-601A Provisional Unlawful Presence Waiver application is denied or withdrawn, you may submit a new application. However, you will need to start the process from the beginning and pay the required fees again. It is crucial to address any issues that led to the denial or withdrawal in the new application to improve your chances of success.
Can I apply for the I-601A waiver if I am in removal proceedings?
If you are in removal proceedings, you may still be eligible to apply for the I-601A Provisional Unlawful Presence Waiver if your proceedings are administratively closed or have been terminated by an immigration judge.
Can I include my spouse and children in my I-601A waiver application?
No, the I-601A Provisional Unlawful Presence Waiver is specific to the individual applicant. If your spouse or children also require a waiver for unlawful presence, they must each submit a separate I-601A waiver application.
Can I apply for the I-601A waiver if I have a pending asylum application?
If you have a pending asylum application and you are also eligible for an immigrant visa based on a family relationship, you may apply for the I-601A Provisional Unlawful Presence Waiver. However, the approval of the I-601A waiver does not guarantee the approval of your immigrant visa or the dismissal of your asylum application.
Is there an age requirement for the I-601A waiver?
There is no specific age requirement for the I-601A Provisional Unlawful Presence Waiver. However, to accrue unlawful presence and be eligible for the waiver, you must be at least 18 years old.
Can I apply for a green card through the Adjustment of Status after my I-601A waiver is approved?
The I-601A Provisional Unlawful Presence Waiver is specifically designed for individuals who are consular processing their immigrant visa applications, not for those applying for a Green Card through Adjustment of Status. If your I-601A waiver is approved, you must leave the United States and attend a consular interview abroad to obtain your immigrant visa. Once you enter the U.S. with your immigrant visa, you will become a lawful permanent resident, also known as a green card holder.
Can I expedite my I-601A waiver application?
In some limited circumstances, USCIS may consider expediting an I-601A Provisional Unlawful Presence Waiver application if you can demonstrate a severe financial, medical, or other compelling reason. However, expedited processing is granted at the discretion of USCIS, and there is no guarantee that your request will be approved.
If I have a criminal history, can I still apply for the I-601A waiver?
While the I-601A Provisional Unlawful Presence Waiver is specifically for unlawful presence, having a criminal history may complicate your case and make you inadmissible on other grounds. Additional waivers or other strategies may be necessary to address your criminal history.
Will my I-601A waiver application affect my current or future nonimmigrant visa applications?
Submitting an I-601A Provisional Unlawful Presence Waiver application should not directly impact your current nonimmigrant status or future nonimmigrant visa applications. However, your unlawful presence history and any other factors that led to your need for the I-601A waiver may be taken into account by consular officers when considering your nonimmigrant visa applications.
How long is the I-601A waiver valid?
The I-601A Provisional Unlawful Presence Waiver does not have a specific validity period. However, it is essential to proceed with the consular processing of your immigrant visa application promptly after your I-601A waiver is approved to avoid potential issues or delays. In some cases, the National Visa Center (NVC) may set a deadline for scheduling your consular interview, and failure to comply with this deadline may result in the termination of your immigrant visa registration.
Can I extend my stay in the United States while waiting for the decision on my I-601A waiver application?
If you have a valid nonimmigrant status or another basis to remain in the United States, you may be able to extend your stay while waiting for the decision on your I-601A Provisional Unlawful Presence Waiver application. However, this will depend on the specific circumstances of your case.
How can I prove that my qualifying relative will experience extreme hardship?
To demonstrate extreme hardship, you will need to provide substantial evidence of the difficulties your qualifying relative would face if you were denied the I-601A Provisional Unlawful Presence Waiver. This can include financial, medical, emotional, educational, and other factors that would make it challenging for your relative to either relocate to your home country or live separately from you.
Can I change my qualifying relative after submitting my I-601A waiver application?
Once you have submitted your I-601A Provisional Unlawful Presence Waiver application, you generally cannot change your qualifying relative. If your circumstances change and you need to update your application, you will likely need to withdraw your current application and submit a new one with the updated information.