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What is the provisional waiver (601A)?

Form I-601A Waiver Explained

The government may deny permanent residence (green card) for a variety of reasons, such as crimes, fraud, immigration violations, health problems and even the likelihood of becoming a public charge. These reasons are known as grounds of inadmissibility.

A waiver can help you qualify for a green card despite these problems, but there are different waivers for each type of problem that applies to a certain case. It’s important to contact an attorney to decide the waiver or combination of waivers that my apply to your circumstances.

In this blog, we are only discussing the I-601A waiver dealing with only one reason - unlawful presence in the U.S. Individuals who have been present in the U.S. without a valid visa may only be able to obtain a green card through the use of the unlawful presence waiver. Typically, people submit this waiver after the family petition I-130 has been approved and before they resume with the consular process portion of the case.

Eligibility for Unlawful Presence Waiver

To be eligible for an I-601A provisional unlawful presence waiver through a family-based petition, you must meet ALL of the following conditions:

  • Be physically present in the United States to file your application and provide biometrics;

  • Be in the process of obtaining your immigrant visa and have an immigrant visa case pending with Department of State (DOS) because you are the principal beneficiary of an approved Form I-130 (Petition for Alien Relative);

  • Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen or permanent resident spouse or parent;

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

  • Believe you are or will be inadmissible only because of a period of unlawful presence in the United States that was:

  • More than 180 days, but less than 1 year, during a single stay or

  • 1 year or more during a single stay.

Generally, 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. However, there may be other deportation defense strategies available to you.

Applying for the I-601A Waiver

Individuals who wish to apply for an unlawful presence waiver must file Form I-601A, Application for Provisional Unlawful Presence Waiver.  However, making a request is much more complicated than preparing a form. Showing extreme hardship to your U.S. citizen or lawful permanent resident parent or spouse takes several legal arguments touching on different factors and personalizing it to each case.

It is very important to speak with an attorney about when and how to submit your waiver.  You’ll need to submit substantial evidence to support your claim that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen or lawful permanent resident spouse or parent.

The timing of your waiver is also important, as you have to be sure that the I-130 petition remains active and that you are in touch with the Department of State while your waiver is pending.

This is not a do-it-yourself process. We highly recommend obtaining the assistance of an experienced immigration attorney to help you through the process.

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