Form I-601A – Application for Provisional Unlawful Presence Waiver for the United States

1. What is Form I-601A and who is eligible to apply for it?

Form I-601A is the Application for Provisional Unlawful Presence Waiver for the United States. This application is specifically for certain individuals who are residing in the U.S. unlawfully and are eligible for an immigrant visa based on their relationship with a U.S. citizen spouse or parent. To be eligible to apply for the Form I-601A waiver, individuals must meet certain criteria, including:

1.1. Being at least 17 years old.
1.2. Having an approved Form I-130, Petition for Alien Relative, or Form I-140, Immigrant Petition for Alien Worker filed on their behalf by a qualifying family member.
1.3. Being physically present in the U.S. at the time of the application.
1.4. Demonstrating that their U.S. citizen spouse or parent would experience extreme hardship if the individual is not allowed to return to the U.S.
1.5. Not having any other grounds of inadmissibility that would make them ineligible for a waiver.

Overall, Form I-601A is designed to provide a pathway for certain individuals to address their unlawful presence in the U.S. and seek a waiver before departing to attend their immigrant visa interview abroad.

2. What is the purpose of the Provisional Unlawful Presence Waiver?

The purpose of the Provisional Unlawful Presence Waiver, also known as Form I-601A, is to allow certain eligible immediate relatives of U.S. citizens who are physically present in the United States to apply for a waiver of the unlawful presence ground of inadmissibility before departing the U.S. to attend their immigrant visa interview at a U.S. embassy or consulate abroad. This waiver helps individuals avoid lengthy separation from their families during the visa application process by allowing them to address the unlawful presence issue while still in the United States.

1. By obtaining the Provisional Unlawful Presence Waiver, applicants can reduce the amount of time they are separated from their loved ones while waiting for a decision on their waiver application.
2. This waiver provides a streamlined process for certain individuals to address their unlawful presence and seek lawful admission to the U.S. as immediate relatives of U.S. citizens.

3. What are the requirements for eligibility for the Form I-601A waiver?

To be eligible for the Form I-601A waiver, one must meet the following requirements:

1. The applicant must be physically present in the United States.
2. The applicant must be at least 17 years of age at the time of filing the application.
3. The applicant must be the beneficiary of an approved immigrant visa petition (I-130).
4. The applicant must have a case pending with the Department of State based on the approved immigrant visa petition.
5. The applicant must demonstrate that their U.S. citizen or lawful permanent resident spouse or parent would experience extreme hardship if the applicant is not granted the waiver.

Meeting these requirements is essential for eligibility for the Form I-601A waiver. It is important to carefully review and fulfill all criteria before submitting the application to maximize the chances of a successful outcome.

4. How do I demonstrate extreme hardship to my U.S. citizen or Lawful Permanent Resident spouse or parent?

To demonstrate extreme hardship to your U.S. citizen or Lawful Permanent Resident spouse or parent for the Form I-601A Application for Provisional Unlawful Presence Waiver, you must provide evidence of the specific and unique circumstances that show how they would suffer significantly if you were denied admission to the United States. This can include various factors such as medical conditions requiring ongoing treatment not available in your home country, emotional hardship due to separation, financial difficulties, and any other compelling reasons that establish the extreme hardship they would face without your presence in the U.S. To effectively demonstrate extreme hardship, it is crucial to gather supporting documents and provide a detailed explanation of the impact on your qualifying relatives in a comprehensive manner. Additionally, consider seeking the guidance of an immigration attorney experienced in hardship waivers to ensure your application presents a strong case.

5. What are the reasons that an I-601A waiver application may be denied?

An I-601A waiver application may be denied for several reasons, including but not limited to:

1. Failure to demonstrate extreme hardship: One of the key requirements for an I-601A waiver is to establish that the qualifying relative (usually a spouse or parent who is a U.S. citizen or lawful permanent resident) would experience extreme hardship if the applicant is not granted the waiver. If the evidence provided is not deemed sufficient to meet this standard, the application may be denied.

2. Ineligibility: The applicant must meet certain eligibility criteria to qualify for the I-601A waiver, including being physically present in the United States, having an approved immigrant visa petition, and meeting other requirements. If the applicant does not meet these criteria, their application may be denied.

3. Fraud or misrepresentation: Providing false information or documents in support of the waiver application can lead to denial. USCIS takes cases of fraud or misrepresentation very seriously and may deny the application if such issues are discovered.

4. Criminal history: Certain criminal convictions or immigration violations can make an individual ineligible for an I-601A waiver. If the applicant has a criminal history that triggers grounds of inadmissibility, their waiver application may be denied.

5. Lack of good moral character: USCIS will assess the applicant’s overall conduct and behavior, including any history of immigration or criminal violations, to determine if they possess good moral character. If there are concerns about the applicant’s character, this could result in denial of the waiver application.

It is important for applicants to carefully review the eligibility requirements, provide accurate and complete information, and thoroughly document the extreme hardship faced by their qualifying relative in order to maximize their chances of approval.

6. Can DACA recipients apply for the Form I-601A waiver?

DACA recipients are generally not eligible to apply for the Form I-601A waiver. The provisional unlawful presence waiver is specifically for individuals who are the immediate relatives of U.S. citizens and who will experience extreme hardship if they are separated from their family members due to their unlawful presence in the United States. DACA recipients already have a form of temporary lawful presence in the U.S. through the DACA program, which is different from the situation that the Form I-601A waiver is designed to address. Therefore, DACA recipients would not have a basis to apply for the Form I-601A waiver based on their DACA status alone.

However, individual circumstances can vary, and there may be certain exceptional cases where a DACA recipient may have unique circumstances that could potentially make them eligible for the Form I-601A waiver. It is recommended that DACA recipients consult with an experienced immigration attorney to discuss their specific situation and explore all available options for relief and eligibility for waivers or other immigration benefits.

7. Can individuals with criminal records apply for the I-601A waiver?

Individuals with criminal records may be eligible to apply for the I-601A waiver under certain circumstances. Having a criminal record does not automatically disqualify someone from applying for the waiver, but it can complicate the process. The U.S. Citizenship and Immigration Services (USCIS) will consider the type of criminal offense, the severity of the offense, and other factors when reviewing an I-601A waiver application.

1. Minor offenses: Certain minor offenses may not have a significant impact on the eligibility for the waiver. Traffic violations or misdemeanors that do not involve moral turpitude may not be a barrier to obtaining an I-601A waiver.

2. Serious offenses: Individuals with more serious criminal convictions, particularly those involving crimes of moral turpitude or aggravated felonies, may face challenges in obtaining the waiver. These types of offenses can lead to inadmissibility issues, making it more difficult to qualify for the waiver.

Overall, individuals with criminal records should seek legal guidance from an immigration attorney experienced in I-601A waivers to assess their specific situation and determine their chances of success in applying for the waiver.

8. Is there a limit to the number of applications that can be approved per year?

There is no specific limit to the number of Form I-601A applications that can be approved per year by U.S. Citizenship and Immigration Services (USCIS). The approval of each application is based on individual circumstances, eligibility criteria, and the merits of the case presented. USCIS reviews each application on a case-by-case basis to determine whether the applicant meets the requirements for the provisional unlawful presence waiver. Factors such as the applicant’s qualifying relative, the presence of extreme hardship, and other relevant factors are considered during the adjudication process. Therefore, the approval of Form I-601A applications is not capped by a specific annual limit.

9. Can I apply for the I-601A waiver if I have a pending immigration case or removal order?

If you have a pending immigration case or a removal order, you may still be eligible to apply for the Form I-601A waiver, but there are certain considerations to keep in mind.

1. Pending Immigration Case: If you have a pending immigration case, such as an adjustment of status application or another form of relief, applying for the I-601A waiver may impact your current case. It is important to consult with an immigration attorney to understand how applying for the waiver could affect your pending case and overall immigration status.

2. Removal Order: If you have a removal order, you may still be able to apply for the I-601A waiver, but it is crucial to address any outstanding issues related to the removal order before proceeding with the waiver application. Working with an experienced attorney can help you navigate the complexities of having a removal order and seeking a provisional unlawful presence waiver.

In both scenarios, it is essential to seek guidance from a knowledgeable immigration attorney who can assess your specific situation, advise you on the best course of action, and assist you throughout the waiver application process to maximize your chances of success.

10. What is the processing time for the Form I-601A waiver application?

The processing time for a Form I-601A waiver application can vary depending on several factors. On average, the processing time can range from several months to over a year. Some key factors that can influence the processing time include the volume of applications received by the U.S. Citizenship and Immigration Services (USCIS), the complexity of the case, the completeness of the application and supporting documentation, any requests for additional evidence or information by USCIS, and other external factors such as staffing levels and resource allocation within USCIS. It’s important for applicants to carefully follow all instructions, submit a thorough and well-documented application, and stay informed about the status of their case through USCIS updates or their legal representative.

11. How much does it cost to apply for the Provisional Unlawful Presence Waiver?

The current cost to apply for the Provisional Unlawful Presence Waiver, Form I-601A, is $630 (as of October 2021). This fee covers the processing of the waiver application by the United States Citizenship and Immigration Services (USCIS). It is important to note that USCIS fees are subject to change, so applicants are advised to check the most recent fee structure on the USCIS website before submitting their application. Additionally, there may be other costs associated with the waiver application process, such as legal fees if you choose to work with an immigration attorney to help prepare and file your application.

12. Can I appeal a denial of my I-601A waiver application?

1. No, you cannot appeal a denial of your I-601A waiver application. The decision on an I-601A waiver application is final and cannot be appealed to the Administrative Appeals Office (AAO) or any other appeal body within the U.S. Citizenship and Immigration Services (USCIS).

2. However, if your I-601A waiver application is denied, there are several options available to you, including:

3. Reapplying: You may choose to reapply for the I-601A waiver if there are new circumstances or additional evidence that could potentially strengthen your case.

4. Seek a different form of relief: If you are ineligible for the I-601A waiver, you may explore other forms of relief available to you, such as applying for a regular waiver or pursuing a different immigration strategy.

5. Consult with an immigration attorney: It is highly recommended that you seek the advice of an experienced immigration attorney if your I-601A waiver application is denied. An attorney can help you understand your options and assist you in determining the best course of action moving forward.

In conclusion, while you cannot formally appeal a denial of your I-601A waiver application, there are alternative steps you can take to address the denial and explore other avenues for relief.

13. Do I need an immigration attorney to help me with my I-601A application?

Seeking the assistance of an experienced immigration attorney for your I-601A application is highly recommended for several reasons.

1. Understanding Eligibility: An immigration attorney can assess your individual circumstances to determine if you meet the eligibility requirements for the waiver. They can provide guidance on whether you qualify based on factors such as your relationship to a U.S. citizen or lawful permanent resident spouse or parent, the extreme hardship they would face if you were denied admission, and the potential grounds of inadmissibility you may be subject to.

2. Legal Expertise: Navigating the complex U.S. immigration system can be challenging, especially when it comes to preparing and submitting the I-601A application. An immigration attorney can help you complete the required forms accurately, compile the necessary supporting documentation, and present a strong case on your behalf.

3. Mitigating Risks: Any errors or omissions in your I-601A application could lead to delays, denials, and potential negative consequences for your immigration status. An immigration attorney can help minimize these risks by ensuring that your application is thorough, well-documented, and in compliance with all relevant laws and regulations.

4. Handling Communication: An experienced attorney can communicate with the U.S. Citizenship and Immigration Services (USCIS) on your behalf, addressing any inquiries or requests for further information that may arise during the processing of your I-601A application.

Overall, while hiring an immigration attorney is not required for submitting an I-601A application, their expertise can significantly increase your chances of success and help you navigate the complexities of the waiver process with confidence.

14. Can I apply for a waiver if I am currently in removal proceedings?

Yes, individuals who are currently in removal proceedings may still be eligible to apply for a Form I-601A provisional waiver under certain circumstances. It is important to note that being in removal proceedings does not automatically disqualify someone from applying for the waiver. However, there are specific requirements and considerations that need to be taken into account:

1. Consult with an experienced immigration attorney: It is crucial to seek legal advice from a qualified immigration attorney who can assess your individual case and provide guidance on how to proceed with the waiver application while in removal proceedings.

2. Eligibility requirements: You must meet all the eligibility criteria for the provisional waiver, including being an immediate relative of a U.S. citizen, demonstrating extreme hardship to the qualifying relative, and meeting other relevant requirements.

3. Coordination with removal proceedings: Applying for a waiver while in removal proceedings can complicate your case, and it is essential to coordinate with both your attorney handling the removal proceedings and the attorney assisting with the waiver application to ensure a cohesive legal strategy.

4. Possible challenges: Being in removal proceedings can present challenges to your waiver application, such as potential delays, increased scrutiny from immigration authorities, or the need to address any underlying issues that led to your removal proceedings.

Ultimately, the decision to apply for a waiver while in removal proceedings should be carefully considered and guided by knowledgeable legal counsel to maximize the chances of a successful outcome.

15. Can I travel outside the United States while my Form I-601A waiver is pending?

Generally, it is not recommended to travel outside the United States while your Form I-601A waiver is pending. Traveling outside the U.S. while the waiver is being processed can have serious implications for your application. Here are reasons why it is not advisable to travel while your Form I-601A waiver is pending:

1. Presence in the U.S.: You must be physically present in the United States when your Form I-601A waiver is approved. Leaving the country can impact your eligibility for the waiver.

2. Risks of Inadmissibility: If you depart the U.S. while your waiver is pending, you may trigger the unlawful presence bar, making you inadmissible to re-enter the country for a certain period of time.

3. Delays and Complications: Traveling outside the U.S. can lead to delays in processing your waiver application and can complicate your case, potentially resulting in denial or additional hurdles.

It is important to consult with an immigration attorney or a qualified professional for personalized guidance on your specific situation before making any decisions regarding travel while your Form I-601A waiver is pending.

16. How long does the waiver grant me permission to stay in the U.S.?

The Form I-601A, also known as the Application for Provisional Unlawful Presence Waiver, grants permission for individuals to stay in the United States while their waiver application is processed. Once approved, the waiver allows the individual to remain in the U.S. temporarily while they attend their consular interview in their home country to receive their immigrant visa. The waiver does not establish a specific duration of stay in the U.S. and is valid only until the individual’s immigrant visa interview is completed. Once the immigrant visa is issued to the individual, they would need to leave the U.S. to attend their visa interview and then reenter the country legally as a lawful permanent resident. It is crucial to follow all instructions and requirements outlined in the waiver to avoid any issues with legal status in the U.S.

17. What happens if my Form I-601A waiver is approved?

If your Form I-601A waiver is approved, it means that the U.S. Citizenship and Immigration Services (USCIS) has granted you a provisional unlawful presence waiver. This waiver allows certain individuals who are otherwise ineligible due to unlawful presence in the U.S. to waive this ground of inadmissibility before departing the country for consular processing of an immigrant visa.

1. You will be able to depart the U.S. with the assurance that you will not face a lengthy bar from reentering due to accruing unlawful presence.
2. Once you depart the U.S. and attend your consular interview, the approved waiver will facilitate the process of obtaining an immigrant visa.
3. It is essential to comply with any additional requirements or conditions specified for your case to ensure successful completion of the immigration process.
4. Keep in mind that the approval of the I-601A waiver does not guarantee the issuance of an immigrant visa, as other admissibility factors will still be considered during the consular processing.

18. Can I apply for a green card after receiving the I-601A waiver?

Yes, you can apply for a green card after receiving the I-601A waiver. The purpose of the I-601A waiver is to forgive certain unlawful presence inadmissibility grounds before a person leaves the U.S. for the immigrant visa interview at a U.S. consulate abroad. Once the waiver is approved, the individual can then depart the U.S. for the consular interview with reduced risk of being subject to a long-term bar from reentering the U.S. Therefore, after receiving the I-601A waiver and attending the consular interview, if the green card application is approved, you can obtain lawful permanent residency in the United States. It’s important to follow all necessary steps and requirements in the green card application process to ensure a successful outcome.

19. Can I apply for a Provisional Unlawful Presence Waiver if I entered the U.S. illegally multiple times?

Yes, individuals who have entered the United States illegally multiple times may still be eligible to apply for a Provisional Unlawful Presence Waiver (Form I-601A). However, there are specific requirements that must be met in order to qualify for the waiver:

1. The applicant must be an immediate relative of a U.S. citizen, meaning they are the spouse, parent, or unmarried child under 21 years of age of a U.S. citizen.
2. The applicant must demonstrate that their U.S. citizen spouse or parent would experience extreme hardship if the applicant is not allowed to remain in the United States.
3. The applicant must be physically present in the United States at the time of filing the waiver application.
4. The applicant must not have any other grounds of inadmissibility that would prevent them from being eligible for the waiver.

It is essential to consult with an immigration attorney to assess your individual circumstances and determine your eligibility for the Provisional Unlawful Presence Waiver based on multiple illegal entries into the United States.

20. Are there any recent changes or updates to the I-601A process that I should be aware of?

As of September 2021, there have been some notable changes to the I-601A process that applicants should be aware of:

1. Expansion of Eligibility: The Biden administration expanded the eligibility criteria for the I-601A waiver to include a wider range of individuals. Previously, only immediate relatives of U.S. citizens were eligible, but now individuals with family-sponsored or employment-based visa petitions are also able to apply.

2. Removal of the 10-Year Bar: Another significant change is the removal of the 10-year bar for unlawful presence. Prior to this change, individuals who accrued more than 180 days but less than one year of unlawful presence were subject to a 3-year bar, and those with more than one year were subject to a 10-year bar. This change allows individuals with different periods of unlawful presence to seek a waiver.

3. Streamlined Process: The overall process has been streamlined to reduce processing times and make it more efficient for applicants. This includes improved communication with USCIS and clearer guidelines on the documentation required for the waiver application.

It is essential to stay updated on any further changes or updates to the I-601A process by regularly checking the USCIS website or consulting with an immigration attorney to ensure you have the most current information for your application.