I-601A Waiver Process For Unlawful Presence
Entering the United States without inspection or over staying a visa can mean a 3 or 10 year bar once you leave the country. You also may be surprised to know that even if you marry a US citizen, you’re still considered inadmissible until a I-601A waiver is approved. The I-601A is a provisional waiver that was created March 2013 for those who would trigger a 3 or 10 year bar when they leave the US to attend their immigration interview.
Before the new I-601A waiver was available, if you married a US citizen and wanted to apply for a green card, you were required to leave the US for the interview. This would then trigger the 3 or 10 year bar making you inadmissible until you serve the bar outside the US. This is a situation that was all too common before the I-601A waiver was available:
Ricardo arrived in the US when he was just 15 years old with his parents without inspection. He lived in the US illegally for another 10 years until he met and married his wife Maria. They thought since he was now married to a US citizen, they could apply for a green card to give him legal status.
They successfully applied for the I-130 petition which was quickly approved. When their interview date came, Ricardo had to go to Juarez to complete the interview before the green card could be issued. He went to his interview where they told him that he has a 10 year bar because he stayed in the US illegally for over 1 year after the age of 18.
Ricardo was told to apply for the I-601 waiver and would not be allowed back in the US unless it was approved or he has served the 10 year bar. After applying for the waiver, it was denied due to his illegal presence and not showing enough evidence of hardship to his wife Maria.
In the case above, the couple had to apply for the waiver after the interview which forced them to be separated while they waited for the waiver to be approved. But with the new I-601A waiver they can apply for it before the interview while still in the US. Ricardo can find out before he leaves the US whether he is approved for the waiver. That’s is a big step in the right direction!
Are You Eligible For The I-601A Waiver?
Not every immigrant is eligible for this waiver but if you are, it’s the best option if you have accrued unlawful presence. Here are some eligibility requirements before you can apply for the waiver.
- Must be an immediate relative to a US citizen (spouse, parent or unmarried child under 21)
- Must prove extreme hardship on your US relative if you are denied the waiver
- Immigrant but be at least 17 years old
- Unlawful presence is your only grounds for inadmissibility
- You were not assigned interview date before 1/3/2013
Let’s go into depth on each of these requirements.
Must be an immediate relative of US citizen
If you are the spouse, parent or the child of a US citizen you will meet this requirement. If your US relative is a green card holder, you’ll need to wait until they have become a US citizen. To prove your relationship, you can include the following:
- Marriage certificate – if married to US citizen
- Birth certificate – if you are the child of a US citizen
Must prove extreme hardship on US relative
This is where most people get suck. Proving extreme hardship is somewhat vague and can be very difficult because it must be more than the usual hardship family members face by being separated. Below are some examples of extreme hardship that should be documented and included with the I-601A waiver:
- US relative has severe medical condition that requires your care
- US relative suffers from severe mental health condition that requires your care
- Your home country is currently at war and you fear being sent back
- Your elderly parents are dying and you need to care for them
Now that you can prove extreme hardship, it’s time to gather the evidence to include with the waiver. Ask your US relative’s doctor to provide medical records and a letter stating the type of care that is needed.
Include news articles about any wars or civil unrest in your home country. You should know that the issues in your home country must be really serious such as the Syrian war or Iraqi war. Just because there are protests going on, doesn’t mean that it’s too dangerous for you to be sent back.
Note: extreme hardship on US citizen children do not count.
You Must Not Have Any Other Grounds of Inadmissibility
The only grounds of inadmissibility should be the unlawful presence that you need the waiver for. If you also have a criminal record that you’ll need a different waiver for, you are not eligible to apply for the I-601A waiver.
Unfortunately, many immigrants either don’t understand what the waiver requirements are or haven’t talked with an immigration attorney so they are unaware of this rule. Before you apply for the I-601A waiver, review the other grounds of inadmissibility to find out if your situation falls under any of them.
If you do have other inadmissibility factors, it’s best to take care of them by applying for those waivers first.
Crimes that will need additional I-601 waiver:
- Unlawful commercialized vice
- Crime of moral turpitude
- Possession of 30 grams or less of marijuana
- Multiple criminal convictions with an aggregate sentence of confinement of at least five years, or
- Serious criminal offense where you asserted immunity from prosecution, left the US, and refused to submit to U.S. court
How To Apply For I-601A Provisional Waiver
The I-601A waiver is used to request a waiver for your unlawful presence in the US. It allows you to wait on the waiver processing while continuing to live in the US without having to leave the country to find out if you are inadmissible. This is a great change in the law to prevent immigrants from being trapped outside the US while they wait for the decision.
Step 1: Apply for I-130 petition
This first thing you need to do is apply for the I-130 petition asking for permission to apply for a green card. USCIS will process this petition within a few months and transfer it to the National Visa Center (NVC) once approved.
Remember, an approved petition doesn’t give you legal status yet.
Step 2: Ask NVC to put your case on hold
Email the NVC at NVCi601a@state.gov and request that you put your case on hold while you apply for the I-601A waiver. This is to make sure that you are not scheduled for an interview before the waiver is approved.
Step 3: Apply for the I-601A waiver
Fill out the I-601A waiver and include all the evidence that proves extreme hardship on your US relative. You’ll need to include the filing fee of $585 and an $85 biometrics fee with your application. This can only be waived if you are applying based on being abused by your US relative (review the VAWA process).
If the I-601A waiver is approved, your case will continue to be processed by NVC and you’ll be scheduled for the interview. It’s now safe to leave the US to complete the interview.
If the I-601A waiver is denied, you can then decide whether you want to continue with the green card application and risk triggering the bar or cancel the application. No appeals are available but you can definitely reapply for the waiver and include additional evidence.
Final Thoughts on I-601A Waiver Process
Having a close US relative makes you eligible for an immediate relative visa or green card but you’ll first need to overcome inadmissibility. But the good news is that USCIS allows you to apply for a waiver if you have unlawfully been present in the US for more than 180 days or 6 months.
With the I-601A waiver, you can get the decision without leaving the US and risking being denied back in. Many couples have successfully gotten approved for the waiver and went on to get a green card. But, if your waiver isn’t approved it’s time to see an immigration attorney to review your options.
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