The I-601A Provisional Waiver of Unlawful Presence

Family-Based Immigration

If you have accumulated a certain amount of unlawful presence in the United States, you will become subject to deportation/removal without a waiver. Once you leave the United States, whether voluntarily or involuntarily, you will be barred from returning to the US for several years, depending on how much unlawful presence you have accumulated. This is because unlawful presence is one of the grounds of inadmissibility under US immigration law.

The I-601A provisional waiver, also known as the provisional unlawful presence waiver, is essentially a request to the US Citizenship and Immigration Services (USCIS) to forgive your unlawful presence by granting a provisional waiver and allow you to adjust your immigration status to lawful permanent resident based on a family relationship.

The I-601A provisional waiver is designed to be used by people who are currently located inside the United States.

What is Unlawful Presence and How Does It Affect Your Immigration or Visa Status?

You accumulate unlawful presence in the United States every day that you are in the US in violation of US immigration law. There are a few ways to accumulate unlawful presence:

  • By entering the US legally but overstaying your authorized period of stay;
  • By sneaking across the US border; or
  • By entering the US fraudulently (using a fake passport or visa, for example).

If your unlawful presence adds up to more than 180 days but less than one year, you can be deported and denied a US visa for 3 years. This is the 3-year bar. If your unlawful presence adds up to a year or more, you can be deported and denied a US visa for 10 years. This is the 10-year bar. Both of these bars can be overcome with the granting of a provisional waiver.

Why File a Form I-601A provisional waiver?

Suppose that you accumulate, say, 192 days of unlawful presence through any of the foregoing methods, but you marry a US citizen. If the US citizen files a Form I-130 petition on your behalf, without a provisional waiver you could be placed into deportation proceedings rather than granted permanent residence.

Once you were removed from the United States, you wouldn’t be able to re-enter the US, even if marriage to your spouse was legitimate, without another type of provisional waiver (see below). Because you would be subject to the three-year bar, you would be inadmissible for three years unless you secured a provisional waiver during that time.

The I-601 provisional waiver (not to be confused with the I-601A provisional waiver) is the provisional waiver that you seek when you are located outside the United States, subject to the 3-year or 10-year bar, and seeking a way back to the US.

The I-601A provisional waiver, which is the subject of this article, allows you to begin the process of seeking an immigrant visa before you leave the United States. You must apply for an I-601A provisional waiver before you are placed into deportation proceedings.

You will still have to leave the United States, and you will still have to interview for an immigrant visa at a US embassy or consulate overseas, but you will be on a much more secure footing due to the waiver because you needn’t worry about the 3-year bar (or the 10-year bar for some people) hindering your immigrant visa petition.

Limitations of the I-601A Waiver

Unlike Form I-601, which applies to most (but not all) grounds of inadmissibility, the Form I-601A waiver can only waive inadmissibility that is based on unlawful presence. A Form I-601A waiver cannot be used to waive other grounds of inadmissibility (a drug trafficking conviction, for example, which even an I-601 waiver cannot overcome).

Without a waiver, the foreign beneficiary cannot obtain an immigrant visa until his 3-year or 10-year bar expires.

”Qualifying Relative” and “Extreme Hardship”

The I-601A waiver was created to benefit a US citizen or lawful permanent resident of the US who is sponsoring a foreign beneficiary for an immigrant visa and eventually permanent residence based on a family relationship. To obtain a Form I-601A waiver, you must prove that your exclusion from the US will cause extreme hardship to your qualifying relative.

Qualifying Relative

For the purposes of the I-601A waiver, your qualifying relative is your US citizen or lawful permanent resident spouse or parent. If you have no US citizen or LPR spouse or parent, then you have no qualifying relative and you cannot obtain Form I-601A. This rule is distinct from the rule that applies to an I-601 waiver, where in some cases a child counts as a qualifying relative in addition to a spouse or parent.

Extreme Hardship

Your qualifying relative must submit a statement detailing how he or she will suffer extreme hardship if you are not granted an I-601A waiver. The USCIS differentiates between ordinary hardship and extreme hardship. If you are denied entry to the US, your qualifying relative can be expected to suffer a certain amount of hardship, because they will either lose access to you or be forced to relocate abroad (wherever you are living).

Extreme hardship, whatever it is (and there is no precise definition), is a form of hardship that far exceeds ordinary hardship. You must prove that your qualifying relative will suffer extreme hardship either if you leave the US without them, or if they are forced to relocate abroad to be with you. And remember — the hardship that matters is the hardship suffered by your qualifying relative, not by you.

Some examples that might qualify as “extreme hardship” are described below:

  • Your qualifying relative suffers from a serious medical condition and you provide them medical care.
  • You provide critical financial support to your qualifying relative, and you will have to quit your job and stop providing financial support to your qualifying relative if you are not granted an I-601A waiver;
  • Your native country is experiencing political upheaval or would otherwise pose a critical danger to your qualifying relative if they were forced to relocate there.

Many other examples are possible, because “extreme hardship” is an ambiguous term that can mean different things to different immigration officials.

Your Qualifying Relative’s Personal Statement

Your qualifying relative’s personal statement, one of the most important parts of the I-601 waiver application, must be carefully drafted. It is best for you to retain an immigration attorney to draft this statement based on information provided by you and your qualifying relative.

Insist on Working with a Professional, Not an Amateur

Yes, you might be able to save some money by hiring an “immigration consultant or a “notario” — but the consequences for your chances of obtaining an immigrant visa could be as disastrous as hiring a Physician Assistant to remove a brain tumor. Many of these people do little more than fill in immigration forms and write personal statements on behalf of people with limited English language skills.

Suppose, for example, that you hire an “immigration consultant” to draft your qualifying relative’s personal statement in which detailed reasons for the claim of extreme hardship are explained. A small error in writing this statement could result in your waiver application being rejected, with potentially lifelong consequences.

Alternatively, suppose your “immigration consultant” mistakenly applies for an I-601 provisional waiver when you need an I-601 provisional waiver? It’s simply not worth the risk, and the same advice applies to just about any immigration-related application or petition.

Herman Legal Group

We are proud to report that in 2016, Herman Legal Group was designated “Best Law Firm” in the immigration category by US News and World Report. Other honors bestowed upon us by our peers in the legal profession include:

  • An “AV Preeminent” rating by Martindale Hubbell, the nation’s premier legal directory; and.
  • A perfect 10 rating by, the nation’s premier lawyer rating service;

Symbolic honors aren’t enough to satisfy us, of course — we’d rather “put our money where our mouth is”. And we have, by helping tens of thousands of people obtain immigrant visas or adjust status to lawful permanent resident (or to come to the US temporarily) over the last quarter-century. The odds are good that we can speak your language — in fact, our immigration lawyers and staff speak over a dozen languages between them including English, Mandarin Chinese, Arabic, Russian and Spanish.

Meet Our Founder, Richard Herman

Richard Herman, the founder of Herman Legal Group, is recognized nationwide as one of the nation’s foremost experts in immigration law and one of the country’s strongest advocates of immigrants.

He moved to Moscow straight out of law school in 1993 and opened US immigration law practice two blocks from the Kremlin, focusing on helping post-Soviet entrepreneurs immigrate to the United States.

Richard’s media presence has been extensive, including appearances on:

  • The O’Reilly Factor;
  • 20/20;
  • National Public Radio, and
  • Many television and radio stations throughout the US.

His profile in the national print media is similarly high. Many prominent publications have interviewed him including USA Today, Forbes, and BusinessWeek. He has also written several immigration-related articles for HuffPost and published one immigration-related book.

Richard’s peers in the legal profession have not failed to notice his accomplishments — he has twice been listed in The Best Lawyers in America©, the most prestigious peer-reviewed publication in the legal profession. He has also been listed in the Super Lawyers© directory every year for the last decade.

It’s Time to Make It Happen

If you or your loved one needs an I-601a hardship waiver, now is no time to “go it alone.” Contact Herman Legal Group from wherever you are, anywhere in the world, 24/7, by calling (+1) (216) 696-6170 or (+1)(614) 300-1131 or by completing our online contact form). We are able to represent clients throughout the world who are seeking US immigration benefits. We maintain offices in Columbus, Cleveland, and Detroit.

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