On March 4, 2013, U.S. Citizenship and Immigration Services (USCIS) will begin accepting Form I-601A, a waiver application program formally referred to as a “Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives” with stateside processing. Most I-601A waiver applicants will be those who snuck into the U.S across the Canada or Mexico border, i.e., who entered the U.S. without inspection, and who then continued to live and work here without legal permission to do so and so accrued “unlawful presence.” The I-601A waiver will allow certain immediate relatives of U.S. citizens who are present in the United States to seek a waiver for unlawful presence ground of inadmissibility before going outside the United States to obtain immigrants visas (and, therefore, permanent residency status) at a U.S. consulate abroad.
I-601A Unlawful Presence Waiver – 11 Requirements
To qualify for the I-601A provisional waiver for unlawful presence you must meet all of the following requirements:
- be physically present in the United States
- be at least 17 years old
- be the beneficiary of an approved I-130 visa petition
- have a U.S. citizen parent or spouse
- show that if USCIS were to deny your I-601A waiver, your U.S. citizen parent or spouse would suffer “extreme hardship“, an elusive term not defined under U.S. immigration law (USCIS has broad discretion to decide whether you meet the “extreme hardship” standard)
- be willing to leave the United States to return to the U.S. Consulate to seek an immigrant visa
- have no other grounds of inadmissibility such as fraud, misrepresentation or convictions of crimes involving moral turpitude
- have never received an order of removal (or accepted voluntary departure without departing as required)
- are not in removal or deportation proceedings
- are not an applicant for adjustment of status
- are not scheduled for an immigrant visa interview at a US consulate abroad
USCIS says that the I-601A waiver program may later be expanded to cover also immediate relatives who are permanent resident and possibly other grounds of inadmissibility such as fraud, misrepresentation or crimes involving moral turpitude.
What’s new about the I-601A waiver? What’s the big deal?
Before the I-601A waiver came along, overcoming the unlawful presence inadmissibility problem would require an applicant to leave the United State and file an I-601 abroad, waiting indefinitely for a decision while separated from their U.S. citizen family.
I-601A waiver for unlawful presence keeps families together by allowing for “stateside processing.” That means that I-601A waiver applicants can wait for a decision while in the United States. Once USCIS adjudicates the I-601A waiver application, the applicant must go to a U.S. consulate abroad for immigrant visa application processing.
I-601A waiver: new processing procedure but same “extreme hardship” standard
So the I-601A offers a new procedure to allow certain immediate relatives of U.S. citizens to wait in the United States for their unlawful waiver application to be processed. But the legal standard for the unlawful presence waiver remains unchanged. Successful applicants still must show that their parent or spouse would suffer “extreme hardship” if they were deported or if USCIS were to deny the application.
Why is the I-601A called a provisional unlawful presence waiver?
If USCIS approves your I-601A waiver for unlawful presence, then to get your green card you must leave the United States and go to a US Consulate abroad to apply for an immigrant visa. The I-601A offers a provisional waiver, which means that the approval of your I-601A will only help you legalize your immigration status if you meet all other requirements. In this sense, the I-601A, therefore, offers only aprovisional waiver. If, for instance, USCIS approves your I-601A, the US Consulate could deny your immigrant visa application if it discovered other inadmissibility issues (criminal, fraud, prior order of removal or deportation).
How does USCIS decide to approve or deny I-601A waivers?
The I-601A is still somewhat new. The legal standard that USCIS uses is currently evolving. You will gain insight into the I-601A decision-making process by reviewing this internal memos that USCIS uses to train its I-601A immigration officers.
One big red flag: the “Permanent Bar” for those who illegally re-enterEven if you meet all of the requirements for the I-601A waiver for unlawful presence, you are disqualified if you are subject to what is known as the permanent bar under 212(a)(9)(C) of the Immigration and Nationality Act. This bar applies to those who re-enter the U.S. without inspection and unlawfully present in the U.S. after either (a) being ordered removed or deported or (b) being in the U.S. for an aggregate period of more than 1 year. For instance, Sally enters the US with a B-1/B-2 visitor’s visa and overstays by 14 months. She then goes to Canada and sneaks back into the U.S. Although this bar is said to be permanent, you may seek permission to reenter only after first spending at least 10 years outside the United States.
Interest in the I-601A waiver for unlawful presence? Our immigration lawyers can help!
No one can accurately predict the likelihood that USCIS will grant your particular case. A successful I-601A waiver involves far more than simply sending a form and a filing fee to USCIS. You can improve your chances of success by enlisting the help of I-601A Waiver Attorney Joshua Goldstein. With extensive experience preparing I-601A waivers for unlawful presence and other grounds of inadmissibility, Joshua Goldstein and his team can help by:
- Determining whether you meet all of the basic requirements for the I-601A waiver for unlawful presence so you don’t waste your time, money and energy
- Screening your I-601A waiver case for red flags, hidden issues, complications and other problems that you, without knowledge of immigration, experience, or legal training, would be unlikely to spot
- Showing, persuasively, that your I-601 waiver for unlawful presence is a sympathetic case, deserving of favorable discretion
- Demonstrating, through extensive documentation, that your US citizen spouse or parent would truly suffer “extreme hardship” if USCIS were to deny your I-601A waiver for unlawful presence
- Providing advice, strategy, and guidance from the beginning of the process to the end.
Discover how Attorney Joshua Goldstein can help
Whether you’re simply curious about the I-601A waiver or you’re ready to hire an immigration lawyer to guide you through the waiver process, Joshua Goldstein has guided countless families through the immigration waiver process. He understands what you’re going through and is eager to help. Call us at (617) 722-0005 today to schedule an immigration consultation.