If you have been out of status for six months or more, and an immigrant petition has been approved on your behalf, you may qualify for an I-601A provisional waiver, provided you meet certain conditions. While the process can be challenging, having a U.S. citizen or lawful permanent resident spouse, parent, or minor child may help you to gain legal status. However, there are important steps that you must take to file a successful waiver of your inadmissibility for legal status in the United States.
What Is an I-601A Provisional Waiver?
An I-601A provisional waiver may allow certain applicants for immigrant visas currently residing in the United States to overcome an unlawful presence ground of inadmissibility. Once the waiver is approved, the nonimmigrant can leave the United States to attend an interview at a U.S. consulate or embassy abroad. This waiver is basically a request to immigration to forgive the period of unlawful presence in the United States, but the nonimmigrant must have no other bars to admissibility.
If you have been in the United States for more than 180 days but less than one year without legal status, then you will have accrued unlawful presence and may likely face a 3-year bar from reentry when you leave the United States. If you have been without legal status for more than one year, then you may be subject to a 10-year bar once you leave. This will disqualify you from adjusting your status in the United States, even if you have a U.S. citizen or LPR spouse, parent, or other immediate relative.
A provisional waiver will help to reduce the chance of having your immigrant visa denied at a consulate or embassy. If your waiver is approved, and your immigrant visa application is granted when you attend an interview abroad, then you will be able to return to the United States as a permanent resident.
Form I-601A Provisional Waiver Requirements
- You must be physically present in the United States
- You must be inadmissible only for accruing unlawful presence
- You must have an approved immigrant petition and a pending immigrant visa case
- You have a U.S. citizen or Lawful Permanent Resident spouse or parent (Qualifying Relative)
If you satisfy the above requirements, then you must prove that your qualifying relative will suffer extreme hardship if you cannot return to the United States.
Common Disqualifiers for Unlawful Presence Waiver Applications
- You have criminal convictions, serious health conditions, immigration fraud findings, or other issues that could make you inadmissible
- You are actively in removal proceedings that have not be administratively closed
- You have a final order of removal or deportation and do not have an approved Form I-212 waiver that would allow you to apply for an I-601A waiver
Extreme Hardship Considerations
An approved I-601 waiver is based on the extreme hardship that your qualifying relative will endure if you cannot return to the United States after your interview. It is not based on your own hardship, or that of extended family members. The main hardships that may be considered “extreme” include the ones listed below:
- Medical hardship: Your qualifying relative has a serious illness or medical condition for which they are receiving treatment in the United States.
- Emotional hardship: Your qualifying relative suffers from major depressive disorder, general anxiety disorder, post-traumatic stress disorder, or another mental health condition that may put them in jeopardy if they are separated from you.
- Lack of adequate medical/mental health care: Your qualifying relative will not have access to adequate medical or mental health treatment if they must relocate with you.
- Financial hardship: Your qualifying relative will face severe financial difficulties if you cannot return to the United States, since you are the primary breadwinner.
- Loss of assets: Your qualifying relative will lose their home, savings, or financial stability in the event of a separation or relocation.
- Loss of childcare: Your qualifying relative depends on you to help care for a child with special needs.
- Elderly parent: Your quality relative is an elderly parent who depends on you for ongoing care.
- Country conditions: There is high crime, gang violence, armed conflicts, and other adverse conditions in your home country that may place your qualifying relative in danger.
- Lack of family ties: Your qualifying relative has no family ties in your home country.
- Culture and language barriers: Your qualifying relative cannot speak the language and will have trouble adjusting to the other culture.
How To Apply for an Extreme Hardship Waiver
If you have an approved immigrant petition, and you do not qualify for adjusting your status in the United States, then the U.S. Citizenship and Immigration Services will transfer your petition to the National Visa Center. The NVC will begin the process for allowing you to file an immigrant visa at a U.S. consulate or embassy abroad.
Since leaving the United States will trigger a 3- or 10-year bar, based on the length of time you have been in the country without legal status, you will need to file a Form I-601A with the USCIS, requesting that they waive your overstay. You must include documentation to support your claim that your U.S. citizen or LPR spouse or parent will suffer extreme hardship if you cannot return to the United States. The documentation can include your qualifying relative’s medical reports or psychological evaluation, as well as proof of their financial/employment status, ties to the United States, and the household expenses you share. If your Form I-601A is approved, you will then have to visit the consulate or embassy abroad for an interview.
Contact an Immigration Lawyer
Filing an immigration waiver in the USA can be daunting. Having a knowledgeable attorney who understands these waivers can make the process smoother. Our attorneys at US-ILC can help you through each step of the waiver process and ensure that you have everything you need to maximize your chance of success. Contact us today at U.S. Immigration Law Counsel, or call 800-666-4996 to speak with an immigration attorney about your situation. We will deal with the government, so you don’t have to!
FAQ Section
Does the consulate have to grant the immigrant visa if the I-601A was approved?
No, an approved I-601A waiver does not guarantee that an immigrant visa will be approved at a U.S. consulate. It will still be at the discretion of the consular officer to approve the visa.
Can I file an extreme hardship waiver before my marriage petition is approved?
You can only file an extreme hardship waiver once an immigrant petition has been approved on your behalf.
How long does the I-601A waiver process take?
The I-601A waiver process is currently taking up to 3 years for adjudication.
