One of the most common grounds of inadmissibility is unlawful presence. However, the I-601A, Application for Provisional Unlawful Presence Waiver (Provisional Waiver) can help you get a green card despite this inadmissibility.
Everyone who applies for a visa or green card is first checked to see whether they are “admissible” to the United States. If someone entered the country unlawfully, they are deemed inadmissible and the law requires them to go to a U.S. consulate overseas for further processing of their immigrant visa. They must also get a waiver for their unlawful presence before they can return to the United States.
An individual present in the U.S. without authorization for more than 180 days is subject to a three-year bar before they may reenter the U.S. If they were in the U.S. for more than a year, there is a 10-year bar. Form I-601A, however, allows eligible relatives of U.S. citizens and Legal Permanent Residents to request a waiver of this bar.
To promote family unity, Form 1-601A also allows the applicant to apply for the waiver before they go to a U.S. Consulate for their immigrant visa interview. If the waiver is approved, they can go to the consulate for their green card interview. If the waiver is denied, they can try again from the relative safety of the United States.
It is important to remember that Form I-601A can only be filed from within the U.S. It is also important to note that immigrants with multiple grounds of inadmissibility cannot apply for the provisional stateside waiver using Form I-601A. Instead, they must apply for their waiver outside the U.S. using Form 1-601.
In order to qualify for the I-601A waiver, the applicant must:
“Extreme hardship” is vaguely defined as greater than the normal hardship a qualifying relative can be expected to experience if the immigrant is denied admission to the United States. It is important to prove both why the qualifying relative cannot move abroad AND why the qualifying relative cannot simply live in the U.S. without the waiver applicant. It is not enough to state that the qualifying relative will miss the immigrant’s company as this is considered a “normal” hardship and not extreme hardship.
Some of the more common arguments for extreme hardship when your qualifying relative remains in the United States include:
It can take many months or even years for USCIS to process the I-601A waiver. You will need to submit a considerable amount of evidence to prove that a waiver should be granted due to the “extreme hardship” that your U.S. citizen or LPR spouse or parent would face if your case were denied.
It’s important to note that approval of the I-601A waiver does not provide lawful status in the U.S., nor does it authorize you to work in the U.S. It only waives an applicant’s illegal presence. If your waiver is approved, you will still need to leave the U.S. to visit a consular office overseas for the actual visa interview where your case may or may not be approved.
The laws pertaining to waivers are both confusing and complex. An immigration attorney can take some of the confusion out of the process.