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I-601A PROVISIONAL STATESIDE WAIVER

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.

Who Needs Form I-601A?

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.

Eligibility

In order to qualify for the I-601A waiver, the applicant must:

  1. Be an immediate relative of a U.S. Citizen or LPR (spouse or parent).
  2. Be the Beneficiary of an approved I-130 immediate relative petition and at least 17 years of age or older.
  3. Be subject only to the unlawful presence ground of inadmissibility.
  4. Be present in the U.S. when applying for the provisional waiver and for biometrics.
  5. Have a case pending with the Department of State (DOS) based on an approved 1-130 immediate relative petition.
  6. Pay the immigrant visa processing fee; and
  7. Show extreme hardship to their U.S. Citizen/LPR spouse or parent if the waiver applicant cannot return to the United States, or if their family must relocate outside the U.S. to be with the applicant.
  8. Not be in removal proceedings or have a final order of removal, exclusion, or deportation. However, individuals with removal orders can now apply for Permission to Reapply (1-212) and then apply for the I-601A waiver after the 1-212 is conditionally approved.

What is the Definition of Extreme Hardship?

“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.

What are some examples of Extreme Hardship?

Some of the more common arguments for extreme hardship when your qualifying relative remains in the United States include:

  • Your qualifying relative has a medical condition and depends on you for care.
  • Your qualifying relative is financially dependent on you, and you will not be able to provide adequate support from abroad.
  • Your qualifying relative has financial debts in the United States and cannot pay them without your support.
  • Your qualifying relative has a sick family member and will be unable to care for that person without your support.
  • You are the caregiver for your qualifying relative’s children, and they cannot afford childcare in your absence.
  • Your qualifying relative is experiencing clinical depression because of your immigration situation.

How Long Does the Process Take?

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.

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