Staying in the U.S. With the I-601A Provisional Waiver of Inadmissibility

The "provisional" or "stateside" waiver allows people immigrating as relatives of U.S. citizens and permanent residents, lottery winners, and immigrant visa applicants in other categories to apply for a waiver of the three- and ten-year bars for unlawful presence before leaving the U.S. instead of after leaving to attend their consular interview.

There's an important waiver available to inadmissible immigrants, meant to promote family unity and reduce the uncertainty and risk that came with the old waiver application method. U.S. Citizenship and Immigration Services (USCIS) has created a form for this purpose, called an I-601A, available for free download on the I-601A page of its website.

Essentially, the waiver, called the "provisional" or "stateside" waiver, allows people immigrating as relatives of U.S. citizens and permanent residents, diversity visa lottery winners, and immigrant visa applicants in other categories, to apply for a waiver of the three- and ten-year bars for unlawful presence before leaving the U.S.; instead of after leaving the U.S. to attend their consular interview.

It has been in effect since 2013. Before that, applicants had no choice but to attend the consular interview with no sense of whether their waiver might be granted, and therefore risk getting trapped outside the U.S. if the waiver application was denied, as we'll discuss further in this article.

What Ground of Inadmissibility the I-601A Waiver Addresses

The I-601A provisional waiver is meant to deal with one, and only one ground of inadmissibility found within U.S. immigration law. ("Inadmissibility" means a barrier to receiving a visa or green card).

The ground in question says that an applicant who has, after the age of 18, accrued unlawful presence in the U.S. of 180 days or more, but less than 365 days, is barred from returning to the U.S. for three years; while applicants who have accrued unlawful presence of 365 days or more and then left the U.S. are barred from returning for ten years.

Green card applicants can, however, be found inadmissible for a variety of other reasons, such as commission of crimes, fraud, or immigration violations; health problems; likelihood of becoming public charges (needing government assistance); and so on.

The provisional waiver cannot be used to deal with any of these, and you cannot get one if you are inadmissible on some basis other than unlawful presence. You will instead need to seek a traditional waiver (on Form I-601) instead, and attend your consular interview before applying or getting an answer.

See Who Can't Get Into The United States? for an overview of the various grounds of inadmissibility.

How the Traditional I-601 Waiver Application Works

Before the provisional waiver option became available, the only procedural choice for visa applicants who had accrued too much unlawful presence in the U.S. was to await their interview at the U.S. consulate, leave the U.S., attend the interview and be found inadmissible, apply to USCIS for the waiver (using Form I-601), and then wait for an answer.

This process can take many months, leading to long periods of family separation even in cases where the waiver was ultimately approved. And if the waiver is denied, the applicant has to wait out the required three or ten years before returning to the U.S. on any form of visa or green card.

How the I-601A Provisional Waiver Application Works

The newer, provisional waiver lets immigrating family members of U.S. citizens take advance measures, while still living stateside, to guard against the possibility of being trapped outside the United States for many years.

After the initial family-based petition or self-petition (on Form I-130 or I-360) has been approved by USCIS, the immigrating applicant will receive information from the National Visa Center (NVC) about the next steps and required processing fees. At that point, the applicant will need to advise the NVC of plans to submit a provisional waiver request to USCIS.

The applicant then submits the provisional waiver application to USCIS on Form I-601A, with accompanying documents and fee ($630 plus $85 for biometric services if under 79 years old; 2020 figures).

USCIS will advise the National Visa Center (NVC) once it approves the provisional waiver application. The case moves forward, and the applicant can leave the country for the consular interview knowing that (if all else is in order) there's a good chance of being approved for the green card.

If USCIS denies the provisional waiver application, the applicant can reevaluate his or her situation while still living with family in the United States. No appeal is available, but applicants are allowed to try again before the consular case has been closed. (If you haven't already consulted an attorney, this would be an excellent time to do so.)

Who Is Eligible to Use I-601A Provisional Waiver Application Process

To make use of the I-601A waiver possibility, you must meet all of the following criteria:

  • You must be eligible for an immigrant visa to the U.S.
  • You are physically present in the United States at the time of submitting your Form I-601A.
  • You have reached the age of 17.
  • You are otherwise admissible to the United States. (Your provisional waiver will be denied if you need to additionally ask for a waiver of any other grounds of inadmissibility, perhaps based on crime, fraud, and so forth; or even if USCIS has reason to believe that you are inadmissible on some other ground.)
  • You can supply evidence showing that, if not granted the waiver and green card, your qualifying U.S. relative(s); in this case, ONLY including your U.S. citizen spouse or parent; will suffer extreme hardship as a result.

The application for the waiver will not only need to include Form I-601A and the fee, but copies of documents proving all of the eligibility factors on the list above. For help preparing this application, consult an experienced immigration attorney.

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