“Provisional unlawful presence waivers” waive inadmissibility to obtain a U.S. green card because of unlawful presence in the United States.1 They do not apply to any other grounds of inadmissibility – such as the commission of an aggravated felony or other inadmissible crime.
601a waivers are available to immediate family members of U.S. citizens and lawful permanent residents (“LPR” or “green card” holders). They are also available to other individuals who are statutorily eligible for an immigrant visa — such as Diversity Visa (DV) selectees and their families.
Why are 601a waivers necessary?
Under U.S. law, adults who have spent too much time in the U.S. unlawfully are barred from returning legally to the U.S. if they leave. The bar lasts either three years or 10 years, depending on how much total time the alien has spent in the U.S. unlawfully:
- 180 days or more, but less than one year, of unlawful presence: 3-year bar;
- One year or more of unlawful presence: 10-year bar.
A provisional unlawful presence waiver allows the U.S. Citizenship and Immigration Services (USCIS) to waive these time periods for applicants who are otherwise eligible to become lawful immigrants to the United States.
Does a 601a applicant have to leave the country?
Since March 2013, people have been able to apply for 601a waiver without having to leave the country. This is why these waivers are also known as “stateside” waivers.
If the waiver is approved, the immigrant will still have to leave the country and go through the visa process, including an interview at a U.S. embassy or consulate. But it will be much less time away.
To help you better understand 601 provisional unlawful presence waivers, our California immigration lawyers discuss, below:
- 1. Who can apply for a provisional unlawful presence waiver?
- 2. Eligibility requirements
- 3. Who is not eligible for a 601(a) waiver?
- 4. How is unlawful presence calculated?
- 5. How much does a 601(a) waiver cost?
- 6. How do I apply for a provisional unlawful presence waiver
- 7. How do I establish extreme hardship to a family member?
- 8. What can I do if the USCIS denies my application?
- 9. When do I need to leave the country?
- 10. Can I be deported while my 601a application is pending?
- 11. Does a 601(a) waiver entitle me to a green card?
Note that people who entered the U.S. unlawfully but are family members of people serving in the U.S. military may be able to avoid leaving the country by obtaining “parole in place.”
Provisional unlawful presence waivers are available to all individuals who are otherwise eligible for a green card but are not eligible for an adjustment of status. These include spouses, children and parents of U.S. citizens or lawful permanent residents (green card holders).
Other people who can apply for a 601 a waiver include employment-based immigrants and Diversity Immigrant Visa Program (DV Program) selectees and their immediate family members.
Such individuals can apply for provisional unlawful presence waivers before they leave the United States for their consular interview.
Individuals who do not wish to seek or do not qualify for a provisional unlawful presence waiver can still file a Form I-601, Application for Waiver of Grounds of Inadmissibility, after a U.S. Department of State (DOS) consular officer determines that they are inadmissible to the United States.
Aliens seeking a provisional unlawful presence waiver must fulfill ALL of the following conditions:
- Be physically present in the United States to file the application and provide biometrics (such as fingerprinting) at a USCIS Application Support Center (ASC);
- Be 17 years of age or older;
- Be in the process of obtaining an immigrant visa and have a case pending with Department of State (DOS) because the alien: Is the beneficiary of an approved:
- Form I-130, Petition for Alien Relative;
- Form I-140, Petition for Alien Worker; or
- Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant;
- Have paid the immigrant visa processing fee (as evidenced by a State Department visa processing fee receipt;
- If the immigrant is the family member of a U.S. citizen or LPR, be able to demonstrate that refusal of admission to the U.S. will cause extreme hardship to the citizen or LPR;
- Believe that he or she is inadmissible only because of a period of unlawful presence in the United States; Immigration and Nationality Act (INA) 212(a)(9)(B)(i);
- Be able to depart from the United States to obtain the immigrant visa; and
- Not have been assigned a consular interview date before January 3, 2013 (even if the date of the interview itself was later).
An alien who meets the eligibility requirements set forth above is nevertheless ineligible if:
- The USCIS has reason to believe that the alien is inadmissible other than because of unlawful presence;
- The alien is in removal (deportation) proceedings (unless the removal proceedings are administratively closed and have not been re-calendared at the time of filing the Form I-601A);
- The alien is subject to a final order of removal under any provision of law (including an in absentia order of removal) or reinstatement of a prior removal order for illegal re-entry;2 or
- The alien has a pending application with USCIS for lawful permanent resident status.
However, an alien who has been placed under a final order of removal, exclusion, or deportation can seek a provisional unlawful presence waiver if:
- He or she applied for an I-212 waiver (Application for Permission to Reapply for Admission into the United States After Deportation or Removal) at the time of filing the Form I-601A, and
- The I-212 waiver has been granted.
The amount of time an alien has been unlawfully present in the U.S. is the aggregate period(s) during which he or she is in the U.S. after the expiration of the period of authorized stay, if any.
However, the following time periods do not count for the purpose of calculating unlawful presence:
- Any period of time in which an alien is or was under 18 years of age; and
- Any period of time in which an alien has a bona fide application for asylum pending (unless the alien was employed in the U.S. without authorization during such period);
There are additional exceptions for:
- Battered women and children and human trafficking victims; and
- People who filed a good faith application for a change or extension of status before the expiration of their authorized stay – provided that they were not employed without authorization in the United States before or while such application is pending. Such people will get a suspension of the accumulation of unlawful presence for up to 120 days.
The current filing fee for a provisional unlawful presence waiver is $630.
In addition, immigrants under than age 79 must also pay $85 for biometric services (such as fingerprinting).
Immigrants do not need an attorney in order to apply for a 601(a) waiver. However, an attorney can be quite helpful in making the necessary showing of extreme hardship (discussed below).
Note that if you do hire an attorney to help you with your application, any lawyer fees will be in addition to the filing fee and biometrics fee.
The first step for family members of U.S. citizens and LPRs who wish to immigrate to the U.S. is to file a family-based visa petition (Form I-130) or Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360).
Once that petition has been approved by USCIS, the applicant should notify the National Visa Center (NVC) at [email protected] and ask them to hold off on further processing while he or she submits a provisional waiver application to USCIS.
The applicant should then submit to the USCIS the following:
- The Form I-601a waiver request;
- Documents proving all of the eligibility factors listed above; and.
- The filing fee and biometrics fee (if applicable).
If the USCIS approves the 601(a) waiver application, the applicant can leave schedule the consular interview and leave the country.
The decision as to whether an immigrant’s spouse (or parent) would suffer extreme hardship is entirely within the discretion of the USCIS officer handling the application.
Factors the officer will take into account can include:
- The regulations on suspension of deportation at list the following 14 relevant factors to examine when determining whether extreme hardship would result from a deportation:
- The age of the alien, both at the time of entry to the United States and at the time of application for suspension of deportation;
- The age, number, and immigration status of the alien’s children and their ability to speak the native language and to adjust to life in the country of return;
- The health condition of the alien or the alien’s children, spouse, or parents and the availability of any required medical treatment in the country to which the alien would be returned;
- The alien’s ability to obtain employment in the country to which the alien would be returned;
- The alien’s length of residence in the United States;
- The existence of other family members who are or will be legally residing in the United States;
- The financial impact of the alien’s departure;
- The impact of a disruption of educational opportunities;
- The psychological impact of the alien’s deportation;
- The current political and economic conditions in the country to which the alien would be returned;
- Family and other ties to the country to which the alien would be returned;
- Contributions to and ties to a community in the United States, including the degree of integration into society;
- Immigration history, including authorized residence in the United States; and
- The availability of other means of adjusting to permanent resident status.3
Not all of these issues must be present and there may be other factors that create hardship in a given case.
The USCIS must consider all relevant factors. And even if no single factor rises to the level of “extreme hardship,” the effect of all the factors when taken together may be enough.
Immigrants are unable to appeal a denial of their application for a provisional unlawful presence waiver.
However, applicants are allowed to try again before the consular case has been closed.
It is highly recommended that immigrants in this position retain an experienced California immigration attorney to make sure they do not lose their ability to get their unlawful presence waived.
In the past, a family member subject to the bar had to leave the country to request a waiver and go through the visa process. If the waiver was denied, the immigrant would be separated from his or her family. And even if the waiver was approved, the immigrant would be separated from his or her family for many months.
But in 2013, the U.S. Department of Homeland Security implemented the “stateside” 601a application process. Now people can apply for a provisional unlawful presence waiver while they are still in the U.S.
The provisional waiver process does not change the immigrant visa process. An alien is still required to depart the United States to process his or her immigrant visa at a U.S. Embassy or U.S. Consulate abroad.
However, it is not necessary to leave the country until the application is approved.
Once the provisional unlawful presence waiver is approved, it will only take effect after:
- The alien departs the United States and appears for his or her immigrant visa interview; and
- A DOS consular officer determines that the alien is otherwise admissible to the United States and eligible to receive an immigrant visa.
Note that the DOS may cancel the immigrant visa application if the immigrant fails to appear for his or her interview at the U.S. Embassy or Consulate.
USCIS does not currently envision placing I-601A applicants in removal proceedings. But the service will follow the current Department of Homeland Security (DHS) priorities, which are subject to change.
Yes, subject to the regular process (including the consular interview out of the country). Approval of a provisional unlawful presence waiver does not make an immigrant eligible for adjustment of status totally within in the United States.
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