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I-601A Provisional Unlawful Presence Waivers

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Under INA 212(a)(9)(B), an individual who has been in the U.S. for more than 180 days without status is subject to inadmissibility due to unlawful presence. While certain immediate relatives of U.S. Citizens who entered the country with inspection are able to overcome this inadmissibility, for many others they may be denied a Green Card because of their unlawful presence. They may overcome this inadmissibility by filing for a waiver at the US embassy in their home country, but this can be a lengthy process and time away from family.

However, beginning in 2013 (and updated in 2016), certain individuals are able to apply for a waiver from within the US prior to returning to their home country to process their Green Cards. This is the I-601A Provisional Waiver for Unlawful Presence. This post will briefly discuss eligibility, the steps for filing, and some examples for when it would be used.

Eligibility

To be eligible for a provisional unlawful presence waiver, you must meet ALL of the following conditions:

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

  • Be 17 years of age or older.

  • 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; an approved Form I-140, Petition for Alien Worker; or an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant who has paid the immigrant visa processing fee;

    • Have been selected by DOS to participate in the Diversity Visa (DV) Program (that is, you are a DV Program selectee);

    • Are the spouse or child of a principal beneficiary of an approved immigrant visa petition who has paid the immigrant visa processing fee to DOS; or

    • Are the spouse or child of a DV Program selectee (that is, you are a DV Program derivative)

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

  • 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 (INA section 212(a)(9)(B)(i)(I)); or

    • 1 year or more during a single stay (INA section 212(a)(9)(B)(i)(II)).

You are not eligible for a provisional unlawful presence waiver if any of the following conditions apply to you:

  • You do not meet all of the conditions listed under eligibility mentioned above.

  • You are in removal proceedings that have not been administratively closed.

  • At the time of filing, you are in removal proceedings that have been administratively closed but have been placed back on the Executive Office for Immigration Review (EOIR) calendar to continue your removal proceedings.

  • You have a final order of removal, exclusion, or deportation (including an in absentia order of removal under INA 240(b)(5)). If you have a final order of removal, exclusion, or deportation, you can only seek a provisional unlawful presence waiver if you have applied for, and we have already approved Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal at the time you file the Form I-601A.

Steps for Filing

Have an approved I-130, I-140, or I-360 Petition from USCIS, OR be selected by the Department of State for the Diversity Visa Lottery, OR be the spouse or child of the former

  1. Pay the necessary fees to the National Visa Center (NVC) for your immigrant visa and fill out the online DS-260

  2. Send necessary documentation to NVC along with a cover letter indicating that you are pursuing an I-601A

  3. Submit your I-601A to USCIS along with the following:

    • Form I-601A with application and biometrics fees

    • Proof of payment of NVC fees

    • Proof of approved Petition

    • Biographical Documents

    • Proof of extreme hardship to U.S. Citizen or LPR spouse or parent with documentation of qualifying relationship

  4. Receive approval of I-601A-USCIS will notify NVC of the approval

  5. NVC will schedule your interview at the embassy in your home country

  6. Proceed with consular processing

Examples

  1. Jose entered the US in 2014 by crossing the border. He was never put into removal proceedings. In 2016 he married Gisela, a Lawful Permanent Resident, who has a heart condition that requires frequent doctor visits and makes physical work difficult. In 2017, Gisela filed an I-130 Petition on behalf of Jose which was approved. Since he entered the US without inspection he is unable to adjust status in the US and he'll have to return to his home country to process his Green Card. He will be able to file an I-601A based on his approved I-130 and the extreme hardship that Gisela would experience due to her medical condition if Jose had to return to his home country for an extended period of time.

  2. Natalia entered the US in 2010 at age 18 as an H-4 child of an H-1B holder. When she turned 21, Natalia aged out of H-4 status and changed status to F-1. In 2015 her parents became Lawful Permanent Residents, including her mother who developed breast cancer and is still undergoing treatment. That same year, while on OPT, Natalia's employer filed an H-1B application which was not accepted. After the expiration of Natalia's OPT, the employer still wanted to hire her and a PERM application and subsequent I-140 was approved for her more than a year after the expiration of her OPT. She is not eligible to apply for adjustment of status in the US and must return to her home country to process her Green Card. She will be able to file an I-601A based on the approved I-140 and the extreme hardship her mother would experience since Natalia is her primary caretaker.

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