I-601A Provisional Waivers

Have you entered the United States without a visa? If you meet specific requirements and have not been found inadmissible on some basis other than unlawful presence, you may be eligible to receive an I-601A Provisional Waiver of Inadmissibility. Since March 4, 2013, certain immigrant visa applicants who are immediate relatives (spouses, children and parents) of U.S. citizens can apply for provisional unlawful presence waivers before they leave the United States for their consular interview.  On August 29, 2016, the provisional unlawful presence waiver process was expanded to all individuals statutorily eligible for an immigrant visa and a waiver of inadmissibility for unlawful presence in the United States.

Many foreigners become eligible for lawful permanent residence but are unable to complete the application process due to unlawful presence in the United States. Departing the U.S. for the consular interview may trigger a bar to reentry due to the illegal time spent in the U.S. The I-601A Waiver (also known as the “provisional unlawful presence waiver”) provides a solution for many immigrants with this problem.

The U.S. government may deny lawful permanent residence for several reasons, such as crimes, fraud, immigration violations and health problems. These reasons are known as grounds of inadmissibility. The I-601A waiver deals with only one issue – unlawful presence.

Understanding the Unlawful Presence Bars

Going through the process for a U.S. green card can get very complicated for people who have accrued a certain amount of “unlawful presence” in the U.S. Unlawful presence is not necessarily the same as being undocumented. You have likely accumulated unlawful presence if you:

• Entered the U.S. without inspection (EWI);

• Overstayed an authorized period of stay; or,

• Breached the terms and conditions of a temporary visa status.

Unlawful presence can have major long-term consequences. A person may be barred from reentering the U.S for:

Certain individuals may be able to apply for a green card even after having accumulated unlawful presence inside the U.S. However, such privilege is generally restricted to immediate relatives (spouses, parents, and unmarried children under the age 21) of U.S. citizens. Unlawful presence begins to accrue at the age of 18 years old if the applicant entered the U.S. prior to their 18th birthday.

• Three years, if you depart the U.S. after having accrued more than 180 days but less than 1 year of unlawful presence during a single stay (INA section 212(a)(9)(B)(i)(I));

• Ten years, if you leave the U.S. after having accumulated one year or more of unlawful presence during a single stay (INA section 212(a)(9)(B)(i)(II)); or,

• Permanently, if you re-enter or try to re-enter the U.S. without being admitted or paroled after having accrued more than one year of unlawful presence in the aggregate during one or more stays in the U.S.

Qualifying for a Provisional Unlawful Presence Waiver

To become eligible for an I-601A, Application for Provisional Unlawful Presence Waiver through a family-based petition, you must meet ALL of the following requirements:

• Be physically present in the U.S. to file an I-601A application and provide fingerprints

• Be 18 years of age or older

• Be in the process of obtaining an immigrant visa and have an immigrant visa case pending with the Department of State (DOS) because you are the primary beneficiary of an approved Form I-130 (Petition for Alien Relative) or are the spouse or child of a principal beneficiary of an approved immigrant visa petition who has paid the immigrant visa processing fee with the DOS

• Be able to show that refusal of an admission to the U.S. will cause extreme hardship to the U.S. citizen or permanent resident spouse or parent

• Meet all other requirements for the provisional unlawful presence waiver and complete the Form I-601A and its instructions

• Believe that you are or will be inadmissible only because of a period of unlawful presence in the U.S.

Required Documents for a I-601A Waiver

Documentation must be included with your waiver too. This includes certified copies of birth certificates, copies of passport pages, copies of marriage certificates, photographs of you and qualifying relatives at social occasions, a signed notarized affidavit that confirms the contents of the affidavit that your qualifying relative submitted, and many others. You may also need documents from your qualifying relatives.

Your application for the waiver must include the documentation that can support your claim. An overview of the supporting documents can be found in the Form I-601 instructions.

Normally, you are not eligible for a provisional unlawful presence waiver if you are in removal proceedings or have a final order of removal, exclusion or deportation.

How can Gorostiaga Law help?

A qualified and knowledgeable immigration attorney can help navigate the I-601A waiver process and provide invaluable legal advice. They can help you fill out the required forms, obtain the necessary evidence and documentation, and ensure your filing meet all rules and requirements. Because the provisional waiver process can be complex, retaining an immigration attorney can help simplify and resolve some of the major legal and technical issues.

(This does not constitute legal advice; always consult with a lawyer.)