Navigating the I-601A Waiver: A Possible Path to Staying with Loved Ones

If you hope to remain in the United States with your loved ones, but face the barriers of unlawful entry and unlawful presence, then the I-601A Waiver might be the solution you’ve been searching for. In this blog post, we’ll break down what the I-601A Waiver is, who is eligible, the application process, and why it could be the right choice for eligible immigrants seeking to overcome certain immigration obstacles.

What is the I-601A Waiver?

What stops many people from being able to apply for adjustment of status in the United States (US) is their unlawful entry to the country. So, to stabilize their status, they have to leave the US. When someone has been inside the US for more than 180 days without status, they have a three-year bar from returning. If they’ve been in the US for more than a year without status, they have a ten-year bar. This makes it seemingly impossible for someone to leave the US and return to be with their family within a reasonable amount of time.

That’s why the I-601A Waiver, also known as the Provisional Unlawful Presence Waiver, was created. It is an option USCIS provides for those with an unlawful entry to become lawful permanent residents through consular processing based on a family relationship, in this case, a US citizen (USC) or Permanent Resident (LPR) spouse or parent.

It allows applicants to ask for their unlawful entry to be forgiven, which is approved before departing the US for a consular interview. This departure triggers the three or ten-year bar so that once they leave, they dramatically shorten the amount of time abroad. With the approved I-601A, they can feel confident about returning to the US within weeks instead of years, as it would be without the provisional waiver

Who is Eligible?

The I-601A Waiver is intended for individuals who face immigration barriers due to their unlawful entry and have a relationship with a qualifying family member who would face extreme hardship if separated from the applicant.

Here are the basic eligibility requirements to consider:

Relationship to a US Citizen or Lawful Permanent Resident

The applicant must show that they have what is called a qualifying relative, in this case, a USC or LPR, who will act as the sponsor for their immigrant visa petition. Qualifying relatives for the I-601A must be spouses and parents. Unfortunately, relationships to a USC or LPR child do not qualify someone for this type of waiver.  

Unlawful Entry and Unlawful Presence

The applicant should only have one unlawful entry and one period of unlawful presence to the US and have no other grounds of inadmissibility. This waiver only forgives the unlawful entry and unlawful presence, so if at the visa interview, a consular officer finds that there are other entries or criminal issues, the waiver will be revoked and the applicant may need to refile a brand new waiver application or wait overseas for ten years. 

Immigrant Visa Application Process

The applicant must already have an approved Form I-130 (Petition for Alien Relative) filed on their behalf. However, the I-130 petitioner does not have to be the same person that would show extreme hardship in the I-601A. 

For example, it might be quicker for a USC over the age of 21 to file an I-130 for their mother, compared to the LPR husband. However, the LPR husband will be the qualifying relative for the waiver.

No Other Grounds of Inadmissibility

The applicant must not be subject to any other grounds of inadmissibility, such as criminal convictions, fraud, or health-related issues, which cannot be waived through the I-601A process. 

If any other ground of inadmissibility is discovered, the I-601A will be invalidated and the applicant will have to apply for a new waiver, if eligible.

Demonstration of Extreme Hardship

The applicant must demonstrate that their USC or LPR family member would suffer extreme hardship if they were separated due to the applicant’s inadmissibility. This is more than the hardship that any family would experience if separated; USCIS says that every separated family faces emotional and financial harm.

To have a waiver approved, USCIS wants to see what makes the applicant’s story unique. We think of these waivers as stories about your family that should ultimately make the adjudicator feel like they know you and feel horrible about the idea of you not being together. Generally, USCIS looks at significant financial losses, exacerbated mental health issues, extreme health care barriers, and negative effects on education quality and academic performance. Every family is unique though, and extreme hardship looks different for everyone.

What is the Application Process?

The application process for the I-601A Waiver involves several steps and can take quite a while from start to finish (current processing times are 43 months as of April 2024), but here are the main points to consider:

File Form I-601A

After the I-130 is approved, the applicant submits Form I-601A (Application for Provisional Unlawful Presence Waiver) with the required supporting documents to USCIS. Supporting documents typically include evidence of the qualifying relationship with the qualifying relative, proof of payment for the immigrant visa processing fee, and any other relevant evidence demonstrating extreme hardship. Examples include statements from family and friends, a psychological evaluation, financial statements, and photographs. 

Biometrics Appointment

After USCIS receives the application, the applicant will be scheduled for a biometrics appointment at a USCIS Application Support Center (ASC). During the appointment, the applicant provides fingerprints, photographs, and a signature for identity verification purposes.

USCIS Processing

USCIS reviews the I-601A application and supporting documents to determine eligibility. In some cases, additional evidence or information may be needed. In this case, USCIS would issue a Request for Evidence which must be responded to within the specified timeframe.

Decision Notification

Once USCIS completes the review process, they will issue a decision on the I-601A application. If the I-601A is approved, USCIS contacts the applicant and the National Visa Center (NVC), which is the agency responsible for collecting data and documents in preparation for the interview abroad.

Leaving the United States for an Immigrant Visa Interview

As soon as the NVC has all required documents regarding the approved I-601A, an immigrant visa interview is scheduled at a US embassy or consulate in their home country. At this point, the applicant will prepare to depart the US.

This interview allows the consular officer to determine if the applicant meets all of the requirements to move forward with the immigrant visa. Leaving the US is required to trigger the provisional approval of the waiver since the applicant cannot adjust their status while in the US.

Immigrant Visa Approval and Returning to the United States

If all goes well, the consular officer lets the applicant know that they’ve been approved and their passport and visa will be returned, typically within a week. The applicant is then able to return to the US as a Lawful Permanent Resident.

Why Consider the I-601A Waiver?

The I-601A Waiver provides hope for individuals facing challenges in adjusting their immigration status due to unlawful entry and unlawful presence. By demonstrating extreme hardship to a USC or LPR spouse or parent, you can waive the unlawful presence ground of inadmissibility, allowing you to pursue lawful permanent residency without leaving the country for an extended amount of time.

Starting a case that requires a waiver can feel like getting ready to climb Mount Kilimanjaro. The Hope Immigration team is a trusted guide, with hundreds of successful waivers to our credit. If you believe you meet the eligibility criteria for the I-601A waiver, reach out to us to discuss your options. We would love to talk with you!

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