I-601A – Provisional Unlawful Presence Waiver

Implemented on March 3, 2013, I-601A – Provisional Unlawful Presence Waiver is a program designed for foreign nationals who are currently living in the U.S. and who are statutorily eligible for an immigrant visa, but who are not eligible to apply for adjustment of status due to periods of unlawful presence. This program is designed to reduce the amount of time a U.S. Citizen or permanent resident and their foreign national relative spend separated during the consular application process.

What Is The I-601/I-601A Waiver and Who Should Apply for Them?

Foreign nationals legally present in the United States can be sponsored by their U.S. citizen or permanent resident relatives to obtain a green card under the Family-Based Immigrant Visa program. In the case of foreign nationals married to U.S. Citizens, if those foreign nationals entered the United States without inspection (i.e., they crossed the border without being inspected and admitted by an immigration official) and stayed for more than 180 days, they are deemed to be ineligible to adjust their status from within the U.S. due to unlawful presence. In the case of foreign nationals married to U.S. permanent residents, if those foreign nationals entered the United States without inspection and stayed for more than 180 days, OR if they overstayed their period of authorized stay for more than 180 days after a legal entry, they are deemed to be ineligible to adjust their status from within the U.S. due to unlawful presence.

Foreign nationals who have accrued more than 180 days of unlawful presence are barred from re-entering the U.S. for 3 years. If they have been unlawfully present for more than 1 year, they are barred from re-entry for 10 years. The bars are triggered the moment they leave the United States.

Prior the implementation of the Provisional Unlawful Presence Waiver, the only option for individuals who had been unlawfully present in the U.S. for 180 days or more, but who otherwise qualified for an immigrant visa, employment visa or diversity visa, was to leave the United States and apply for consular processing in their home country’s U.S. consulate. They also had to file Form I-601, Application for Waiver of Grounds of Inadmissibility, which, if successful, would cancel the 3- or 10-year re-entry ban. Consular processing takes a considerably long time, and an applicant could expect a 1 or 2 year wait for their green card application and Form I-601 Waiver to be approved.

To cut down on this long wait time, Form I-601A – Provisional Unlawful Presence Waiver, was introduced in March of 2013. With the Provisional Unlawful Presence Waiver program, foreign nationals who have been unlawfully present in the U.S. for 180 days or more, but who are otherwise eligible to apply for a green card through the family-based visa stream, can apply for the unlawful presence waiver while still in the U.S. The foreign national may stay in the United States until the I-601A is adjudicated by USCIS.  If the provisional waiver application is approved, the applicant still must leave the country and apply for their green card through consular processing. But they are generally looking at much shorter wait times outside the U.S. than under the old system, as they are not required to depart to their home country until the visa interview is scheduled.

Who Qualifies for a Form I-601A – Provisional Unlawful Presence Waiver?

To qualify for the provisional unlawful presence waiver, the applicant must meet ALL of the following conditions:

  • Be at least 17 years old and be physically present in the U.S. when filing Form I-601A – Provisional Unlawful Presence Waiver
  • Have an immigrant visa case pending with Department of State (DOS) under the following categories:
    • The applicant is main 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 belongs in the Special Immigrant class and has paid all the required visa processing fees;
    • Spouse or child of a principal beneficiary of any of the above visa classes and has paid all the necessary visa processing fees
    • Has been selected by the Department of State under the Diversity Visa Program and is currently in the process of obtaining the visa
    • Is the spouse or child of a DV Program selectee
  • Be able to show with evidence that refusal of your re-entry to the United States will cause extreme hardship to your U.S. citizen or Legal Permanent Resident spouse or parent and/or evidence of emotional, financial or medical hardship.
  • Believe you are or will be inadmissible for re-entry to the United States because of a period of unlawful presence that was more than 180 days or more than 1 year during a single stay.
  • Not be subject to any other grounds of inadmissibility other than unlawful presence

Situations where an applicant might otherwise qualify for I-601A – Provisional Unlawful Presence Waiver but are currently under removal proceedings are complicated and beyond the scope of this article – an immigration attorney can provide guidance in such cases.

The process of applying for a provisional waiver can be complicated. Knowing all of the factors that can affect eligibility and if there are any downsides to applying for the waiver is challenging. Consult with an experienced immigration attorney to see what option is best for you and how to file a successful provisional waiver application.