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

Immediate relatives of U.S. citizens have a new way to request a waiver of unlawful presence in order to receive a green card.

There’s a new waiver available to a small group of inadmissible immigrants, as of March 4, 2013. Actually, it’s an old waiver that has long existed in U.S. immigration law – but the Department of Homeland Security has come up with a new way that people can apply for it, which will promote family unity and reduce the uncertainty and risk that came with the old application method. U.S. Citizenship and Immigration Services (USCIS) has created a new form for this purpose, called an I-601A, available for free download on the I-601A page of the USCIS website.

Essentially, the new waiver -- called the "provisional" or "stateside" waiver -- allows immediate relatives of U.S. citizens 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. The net result is that they avoid the risk of being trapped outside the U.S. if the waiver application is denied, as we’ll discuss further in this article.

What Ground of Inadmissibility the I-601A Waiver Addresses

The I-601A, stateside 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, is barred from returning to the U.S. for three years; while applicants who have accrued unlawful presence of one year 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 – you will need to seek a traditional waiver (on Form I-601) instead. See "Who Can't Get Into The United States?" for an overview of the various grounds.

How the Old (I-601) Waiver Application Works

Until 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 (which many applicants will still need to use) is known for taking many months, thus leading to long periods of family separation even in cases where the waiver was ultimately approved. And if the waiver was denied, the applicant would have 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 New, I-601A Provisional Waiver Application Works

The 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 visa petition or self-petition (on Form I-130 or I-360) has been approved by USCIS, the applicant will need to advice the National Visa Center (NVC) (at [email protected]) to hold off on further processing while he or she submits a provisional waiver application to USCIS.

Then, the applicant submits the provisional waiver application to USCIS on Form I-601A, with accompanying documents and fee ($585 - plus $85 for biometric services if you're under 79 years old - as of 2016). If that application is approved, 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 the I-601A Provisional Waiver Application Process

Only a limited class of applicants can make use of the I-601A waiver possibility. You must meet all of the following criteria:

  • You are the immediate relative of a U.S. citizen – that is, a spouse, parent, or unmarried child under the age of 21. In the future, DHS may consider including other family members, such as spouses and children of permanent residents, siblings of U.S. citizens, and adult or married children of U.S. citizens on this list; but not yet.
  • 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 were NOT assigned an interview date before January 3, 2013. (The interview date itself doesn’t matter; just whether the Department of State took action and set that date before or after the new rules took effect.)
  • 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.

Your 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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