I-601A, Application for Provisional Unlawful Presence Waiver

Individuals who are inadmissible are not permitted by law to enter or remain in the United States. The Immigration and Nationality Act sets forth grounds for inadmissibility. The general categories of inadmissibility include health, criminal activity, national security, public charge, lack of labor certification (if required), fraud and misrepresentation, prior removals, unlawful presence in the United States, and several miscellaneous categories. For certain grounds of inadmissibility, it may be possible for a person to obtain a waiver of that inadmissibility. Every case is different, and the unique circumstances of your case will dictate which type of immigration waiver best applies to you.

One of the most common waivers for individuals unlawfully present in the United States is the I-601A Provisional Unlawful Presence Waiver.

The I-601A Provisional Unlawful Presence Waiver, often referred to simply as the “provisional waiver,” is a process by which individuals who are currently in the United States and will be applying for an immigrant visa at a U.S. consulate abroad, and whose only inadmissibility issue is unlawful presence may apply for the waiver of inadmissibility before they leave the United States.

Generally, the provisional waiver process helps people who have been living in the United States with their family without status, who are ineligible to adjust (for example, if they entered the country illegally) and raise no other inadmissibility issues. Before the provisional waiver process began in 2013, such individuals had to leave the United States to attend their consular interviews and could only seek a waiver after the consular officer made a formal finding of unlawful presence inadmissibility. They would have to stay outside the United States for many months, far from family, work, and community ties, while waiting for adjudication of their waiver for unlawful presence. If the waiver were ultimately denied, for example because USCIS determined that the applicant had failed to establish extreme hardship, the immigrant visa applicant would be stuck outside the country with no immediate way to return legally. Lengthy separation and uncertainty in the process meant that, for many families, this pathway to legal status was too risky to undertake.

Now, however, the provisional waiver process allows certain immigrant visa applicants to request the waiver before they leave. This means they can wait in the United States the many months it takes for a decision on the waiver application, while continuing their daily lives. And if the waiver is denied (and they do not believe they can overcome the denial by refiling), they may choose to postpone consular processing, knowing they cannot presently overcome the unlawful presence inadmissibility ground if they depart.

To apply for an unlawful presence waiver, the applicant must (general unlawful presence waiver requirements):

  • Be the spouse, son, or daughter of a U.S. citizen (USC) or lawful permanent resident (LPR);
  • Be able to establish extreme hardship to the USC or LPR spouse or parent; and
  • Warrant a favorable exercise of discretion.

In addition to meeting the above statutory requirements for an unlawful presence waiver, to apply for a provisional unlawful presence waiver the applicant must further (additional requirements, specific to the provisional waiver process):

  • Be at least 17 years old;
  • Be physically present in the United States at the time of submitting the I-601A application;
  • Intend to depart the United States to attend an immigrant visa interview at a U.S. consulate abroad;
  • Be the beneficiary of an approved visa petition;
  • Have paid the immigrant visa processing fee (sometimes referred to as the IV fee invoice);
  • Comply with the biometrics request (following submission of the I-601A application);
  • Not be inadmissible under any other ground of inadmissibility besides unlawful presence
  • Have any removal proceedings administratively closed; and
  • Have been granted an I-212 consent to reapply if prior removal, deportation, or exclusion order.

One of the hardest requirements to meet is the “extreme hardship” requirement. Applicants must demonstrate that their relationship will suffer more than the normal hardship or financial inconvenience caused by family separation. Significant supporting documentation is required! Law Office of Rachel Glogowski specializes in the preparation of supporting briefs and comprehensive evidence packages, detailing the extreme hardship to the qualifying relative and showing that a favorable exercise of discretion is warranted.

Important!

Remember that a U.S. citizen or LPR child is not a qualifying relative for the purpose of showing extreme hardship in this application. USCIS will not consider extreme hardship experienced by your U.S. citizen or LPR children except to the extent that it affects the extreme hardship your U.S. citizen or LPR spouse or parent would experience.

To discuss your eligibility for the I-601A waiver or other inadmissibility waivers, please call our office at 313-251-8282 to schedule an appointment or request an appointment from this website.