Are You Eligible for an I-601A Waiver

Deal with 3-year and 10-year bars from within the United States.

What differentiates the I-601A waiver from other waivers?

Please consider the following example:

  • The applicant is 18 year old or older, and currently lives in the United States;
  • The applicant is eligible for a family green card;
  • The applicant does not have a legal entry in the United States and as a result has been in the United States unlawfully for more than 12 months;
  • The applicant’s has not been battered, abused or subjected to extreme cruelty; neither is the applicant a victim of severe forms of trafficking.

What would happen without the I-601A waiver?

  • The applicant cannot submit Form I-485 because he or she does not have legal entry;
  • The applicant has to switch to ‘consular processing’ where the decision on the family green card is made by a consular officer at a consulate or embassy abroad (outside the United States);
  • Leaving the United States will trigger a 10-year bar for the applicant. The consular officer will notify the bar to the applicant at the time of the interview at the consulate abroad and ask that the applicant submit an I-601 waiver;
  • The applicant will have to stay outside the United States while the I-601 waiver is processed.

What is the value of the 601-A waiver?

The 601-A waiver allows the eligible applicant to obtain a ‘waiver’ of the ground of inadmissibility ‘unlawful presence’ before the applicant departs (leaves) the United States for the interview at the consular or embassy abroad. Two of the advantages of the 601-A waiver are therefore:

  1. Less time away from family for the applicant
  2. Less stress for the applicant

What is the limitation of the I-601A waiver?

It removes the ‘unlawful presence’ ground of inadmissibility, and only that ground. Applicants who have other grounds of inadmissibility against them cannot file the I-601A waiver.

Can I file a Form I-601A, Application for Provisional Unlawful Presence Waiver, from outside the United States?

No, you must be physically present in the United States at the time of filing and you must be physically present to provide your biometrics that are required as part of the provisional unlawful presence waiver request.

Is there an age requirement for filing a Form I-601A, Application for Provisional Unlawful Presence Waiver?

You must be at least 17 years of age at the time of filing. Unlawful presence does not begin accruing until an individual turns 18. However, due to the Department of State processing times and the scheduling of the immigrant visa interview, DHS has decided to allow individuals the option to file the waiver at age 17.

When is Form I-601A submitted?

Form I-601A is submitted after having paid the immigrant visa processing fee:

  • Among the eligibility requirements of Form I-601A is that 1) you must have a green card case pending with the Department of State and 2) you must have already paid your “immigrant visa” processing fee.
  • The NVC will keep the applicant’s case active until Form I-601A is adjudicated.
  • Applicants are encouraged to submit their application to the NVC while the I-601A waiver is pending.

What are the circumstances that may make you ineligible to file Form I-601A?

  • If you believe you are, or will be, inadmissible on multiple grounds or on a ground other than unlawful presence.
  • If you have already submitted Form I-485
  • If you are in removal proceedings, unless your removal proceedings are administratively closed and have not been placed back on EOIR’s calendar to continue the removal proceedings as of the date of filing the I-601A.
  • If you are subject to an administrative final order of removal, exclusion, or deportation from the United States.

Why is the I-601A waiver ‘provisional’?

‘Provisional’ means that it can possibly be changed later. This leaves the door open for the consular officer to revoke the ‘waiver’. This is a cause of concern for many applicants. Most notably, if the consular officer were to determine that a ground of inadmissiblity other than unlawful presence were to apply to the applicant, then the I-601A waiver would be revoked, and the applicant would have to submit an I-601 waiver for the unlawful presence as well as the other ground(s) of inadmissibility uncovered by the consular officer (assuming waivers exist and the applicant is eligible for them).

What is the ‘reason to believe” threat for I-601A waiver?

There is no such threat anymore. Adjudicators used to be able to deny the I-601A waiver if they had a ‘reason to believe’ that there may have been another ground of inadmissibility against the applicant, but the rules changed and this is no longer the case.

When should the applicant worry about the ‘permanent bar’?

Applicants who entered the United States without inspection after having accrued more than one year of unlawful presence are subject to a ‘permanent’ (lifetime) bar. Applicants need to think long and hard about their travel history. Important family events such as weddings or funerals can lead applicants to leave the United States and come back without even realizing that this will subject them to a lifetime bar.

How do U.S. immigration agencies think about waivers?

If the waiver is not granted, the applicant will not be able to join the sponsor in the United States. So one of two things will happen:

  • Either applicant and sponsor will live apart (separation);
  • Or the sponsor will depart the United States to live abroad with the sponsor (relocation)

Generally, applicants present one of these two scenarios as the future of their family relationship with the sponsor, and U.S. immigration agencies assess the level of suffering (‘hardhsip’) created by the new situation on certain family members (called ‘qualifying relatives’). If the level of suffering is deemed too severe and if the applicant is deemed worthy of receiving a pardon, then the waiver is granted.

Who are the ‘qualifying relatives’ for the purposes of an I-601A waiver?

Applicants, sponsors, and other family members will suffer from the separation of applicant and sponsor or their relocation outside the United States. However, only the suffering experienced by the spouse and/or the parent of the applicant will be taken into account, provided they are either a U.S. citizen or a Green Card holder. In other words, qualifying relatives are the USC/LPR Parent/Spouse of the applicant. Children that the applicant and the sponsor have had together or seperately, even U.S.-born children, are not qualifying relatives for the purposes of an I-601A waiver and can only be used tangentially to prove extreme hardship.

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