Tips for Filing an I-601A Provisional Waiver Application

If you are a green-card seeker planning to make use of the U.S. government's provisional waiver procedures, the checklist below will help you make sure that you have assembled all the appropriate forms, documents, and fees. This will help you ask U.S. Citizenship and Immigration Services to forgive your past unlawful U.S. presence and allow you to receive a green card—and that it do so before, not after you leave the U.S. for your consular interview. Nevertheless, we recommend getting an attorney's help with this, both to make sure you are eligible and to help you prepare a complete and convincing waiver application.

For background on who is eligible for this waiver (sometimes also called the "stateside" waiver) and why it is useful, see Staying in the U.S. With the I-601A Provisional Waiver of Inadmissibility.

Who Benefits From an I-601A Waiver

This waiver possibility is especially beneficial for spouses, parents, and children (unmarried, under age 21) of U.S. citizens and permanent residents who entered the U.S. illegally and stayed for six months or more. Such people might technically qualify for a green card, but their unlawful U.S. entry makes them ineligible to get it via the U.S.-based process called "adjustment of status," and traveling overseas could expose them to a time bar of up to ten years upon their return.

One important condition of the waiver is that the immigrant-applicant has a qualifying relative (U.S. citizen spouse or parent) who will suffer extreme hardship if the green card (immigrant visa) is denied.

With consular processing their only procedural option, going forward with their green card application can mean risking getting stuck outside the U.S., possibly separated from their family, for the next three or ten years, as a penalty for their past unlawful presence. But the provisional waiver process lets them make sure they'll be approved for the waiver before they leave the United States for their immigrant visa interview.

Checklist: What to Include in an I-601A Provisional Waiver Application

You will need to prepare or assemble the following for your provisional, stateside waiver application. For any original document other than the USCIS form, send photocopies, not originals.

• USCIS Form I-601A. Available for free on the I-601A page of the USCIS website.
• Receipt of payment for the immigrant visa processing fee. You will be asked to send this to the Department of States (DOS) after your visa petition has been approved but before you are scheduled for a consular interview. Place the receipt on top of Form I-601A.
• Application fee. The primary application fee is $630 (early 2024 figure). Fee waivers are unavailable.
• Biometrics fee. If you are younger than age 79, you must pay the biometrics (fingerprinting and so on) fee of $85 (early 2024 figure).
• Proof that USCIS approved your family-based I-130 petition. Send a copy of the USCIS Form I-797 approval notice. Double check that it classifies you as the immediate relative of a U.S. citizen.
• Proof of U.S. citizen status of your qualifying relative IF that person is not the one who submitted the family I-130 petition for you. Your qualifying relative is the U.S. citizen who suffer extreme hardship if you were denied the waiver and green card. A copy of the birth certificate, passport, or naturalization certificate is your most likely bet here.
• Proof of your relationship to your qualifying relative IF that person is not the one who submitted the family visa petition for you. A copy of a marriage or birth certificates will serve here. If it's a marital relationship and either of you were previously marriage, include divorce or death certificates to prove that the past marriage ended.
• Documents detailing the extreme hardship that your qualifying relative(s) would suffer. This is the most challenging part of the application, and depends on personal circumstance. If, for example, your U.S. citizen has a medical condition that requires your constant care, a doctor's letter and copies of test results would be appropriate. Typical areas of extreme hardship focus on health, educational, financial, personal, and any other relevant considerations. Decisions are made on a case-by-case basis.

After preparing the application, make a complete copy for your records (and in case it gets lost). Send it by courier or U.S. mail with return receipt requested, so that you'll have proof that you mailed it, to the address in USCIS's online instructions for Form I-601A.

Will USCIS Require Provisional Waiver Interviews?

It is unlikely that you will be called in for an interview on your provisional waiver request. After all, USCIS would need to transfer the file from its National Benefits Center to a local office for this. Nevertheless, USCIS has the power to do this if it feels that a personal meeting is the best way to make a decision on your waiver request.

The ultimate decision-maker is the overseas U.S. consulate, however. Even if your waiver application is approved, the consulate can decide that you didn't deserve it and deny the waiver and the immigrant visa. Or, the consulate can find you inadmissible on some other grounds. This is why it can be helpful to hire an attorney for assistance through the entire process.