Understand I-601A Unlawful Presence Waiver

Once you have accumulated unlawful presence in the United States, you need to leave the country and apply at a U.S. embassy or consulate. Getting a waiver of inadmissibility will prevent you from being denied entry to the country for three or ten years.

It is possible to waive unlawful presence inadmissibility before leaving the country if you are a relative of a citizen or permanent resident.

Illegal presence includes:

Entering legally but overstaying your exit date
Sneaking across the U.S. border
Entering the U.S. fraudulently using fake passports or forged visas, for example

Three and Ten-Year Unlawful Presence Bans

Three-Year Ban

The three-year bar may be imposed if you have been unlawfully present for more than 180 days but less than one year.

Ten-Year Ban

The ten-year bar prevents you from returning to the United States after illegally remaining in the country for a year or more. Even if you leave the country voluntarily, you will be barred from returning because of this bar.

If you have accrued unlawful presence in the US and wish to apply for a provisional waiver, consider seeing our skilled I-601A immigration attorneys in Texas for guidance and assistance. We would be happy to assist. In the meantime, here is some additional information on how the process works.

I-601A Waiver Requirements

The I-601A waiver is available only to immigrants who:

Are relatives of US citizens and permanent residents, diversity visa lottery winners, and immigrant visa applicants in specific other categories.
Are physically present in the US. They will still be required to leave the US while waiting for their immigration application and will be required to attend an interview at the US consulate in their country. They will, however, be able to re-enter the US and will not be subject to the three- or ten-year ban.
Are not already the subject of deportation proceedings.
Undertake to leave the US once the waiver is granted to attend the consular interview in their home countries.
Are seventeen years of age or older.
Have a qualifying relative who will suffer extreme hardship if excluded from the US.

Who Qualifies as a Qualifying Relative?

The qualifying relative must be a US citizen or lawful permanent resident spouse or parent. You can only file Form I-601A if you have a qualifying relative.

What Does Extreme Hardship Mean?

‘Normal hardship’ and ‘extreme hardship’ are unregulated, so all waiver applications are reviewed on a case-by-case basis. Extreme hardship is widely interpreted and can mean many things depending on the circumstances of the case.

US immigration agencies and courts define extreme hardship as hardship beyond what a US citizen or LPR relative would experience under normal circumstances if the alien relative was not allowed to enter or stay in the country.

The situation must be more complex. Commonly accepted situations demonstrating extreme hardship include the following:

A US citizen or green card holder has a medical condition and is in need of the care of the foreign relative.
The US relative is financially dependent on the foreign-born one, and it will not be possible to provide adequate support from abroad.
The US relative has financial debts in the United States and cannot pay them without support from the foreign-born relative.
The US relative has a sick family member and cannot care for that person without support from the foreign-born relative.
The US relative is the caregiver for the children and cannot afford childcare without the foreign-born relative.
The US relative is experiencing clinical depression due to this immigration situation.

An experienced immigration attorney can assist you in building a case for extreme hardship. It is crucial to ensure this is done correctly and persuasively. Consider retaining an experienced and locally-based immigration attorney to give yourself the best prospect of success.

Exceptions and Special Considerations

There are some specific circumstances under which an individual might be considered for the waiver process, despite lacking some of the usual requirements.

Exception for immediate relatives of U.S. citizens: Immediate relatives of U.S. citizens who can demonstrate that refusal of their admission to the United States will cause extreme hardship to their U.S. citizen spouse or parent may qualify for the waiver.
Special consideration for members of the military: In some cases, family members of those serving in the military or who are veterans may be granted special consideration due to the unique difficulties and burdens placed on military families.
Certain victims of domestic violence: certain victims of domestic violence who are self-petitioners under the Violence Against Women Act (V.A.W.A.) may also be considered for a waiver.
Some other special situations: There may also be other exceptional circumstances that USCIS will consider when evaluating an application for a waiver. These are considered on a case-by-case basis.

The I-601A Application Processtention Facility

The steps for the process are as follows:

You must obtain approval for a petition for an immigrant visa filed on your behalf.
Include all supporting documentation. USCIS may reject your application if any supporting documentation is missing without even giving you a chance to correct it. Your application will be sent to the National Visa Center if it is approved.
The NVC will send you a letter requesting payment. You will need to pay $630 for processing plus $85 for biometric processing (unless you are 79 or older). You may also need to pay Affidavit of Support fees.
File Form I-601A with one of the four USCIS Lockbox facilities.
Email NVCi601a@state.gov to alert the NVC of your plan to seek a waiver of inadmissibility.
I-601A applications are usually approved within four to six months.
Application for Immigrant Visa and Alien Registration, Form DS-260, must be completed and submitted to the U.S. Department of State website or to the US embassy or consulate website where you wish to apply.

The NVC will schedule you for an immigrant interview after the USCIS approves your I-601A petition.
Schedule a medical exam at a USCIS-approved facility in your country of residence.
You will receive the results of your medical examination in a sealed envelope. DO NOT OPEN OR BREAK THE SEAL.
Attend the immigrant visa interview at the relevant US embassy or consulate in your home country. It is likely that you will have to temporarily turn in your passport.
Within a week or two, you should receive your passport, along with official documents, sealed in an envelope. Do not open the envelope. Your passport and this document must be presented to immigration officials when you re-enter the country.

It is important to note that upon receiving your immigration visa, you’ll have four weeks to enter the country.

Filing Form I-601A

Form I-601A can be downloaded from the USCIS website. In addition, the same website gives detailed instructions on how to fill out the form and what documents are required.

I-601A Waiver Pitfalls

Your I-601A submission should be prepared with attention to detail. There are times when waiver applications are rejected due to minor instances of non-compliance. To minimize mistakes, it is a good idea to have a skilled immigration lawyer oversee the waiver application. Some of the common mistakes to be avoided include:

Failing to include all of the required supporting documents. 90% compliance is not good enough. Be sure to include all the necessary documents in the manner precisely needed.
Failure to answer all questions on the application. Waivers are often delayed or rejected when these questions are not adequately answered.
Forgetting to sign the application. It is mandatory that you sign the application, and not doing so may result in a rejection. Be sure to complete the process by signing on the dotted line.
Failing to pay the filing fees, including the immigrant visa fee receipt.

How We Can Assist

The attorneys at Andrew T. Thomas, Attorneys at Law, are qualified to help you file your visa application, stop your deportation order, file immigration waivers, and appeal immigration decisions. We understand your challenges in navigating the maze of immigration laws.

We offer a full range of citizenship and immigration services and fight for our clients. So call us now for a free consultation, and let’s see what we can do to help you.