I-601A Provisional Waiver for Unlawful Presence

December 21, 2017 11:33 am
by David Jakeman

Thanks to the twists and turns of US immigration law, some people find themselves in a tricky position while applying for a green card (permanent residency). You’ve been working with your trusted immigration lawyer — or you’ve been filling out the mountain of paperwork yourself — you’ve submitted everything, been approved, and now you’re waiting for your interview.

If you’ve been residing legally in the US, you go right ahead with an interview in your geographic area. For example, if you live in the Seattle area, you’ll do your interview at the USCIS office in Seattle, immigration lawyer in tow. If you live in Yakima, you’ll go to the Yakima office. And so on.

An Immigration Catch-22

However, if you’ve spent time in the US illegally, accruing “unlawful presence,” you can’t just hop in the car and go down the street. Since you aren’t legally residing in the United States, you must do your interview back in your country of origin at the local US Consulate. From there, you will either be approved or denied.

There’s a catch though. If you’ve been unlawfully present, as soon as you leave, you trigger a bar that will prevent you from being eligible to return for 3 or 10 years, even if you’re headed back across the border for your consular interview. It’s very unfair, but that’s how the law works.

Luckily, in 2013, the US government finally did something to address this giant problem and created a provisional waiver for unlawful presence — an I-601A. With this waiver, you can apply to have the 3 or 10 year bar waived before you leave the country for your interview. It doesn’t guarantee that your adjustment of status application will be approved by the consulate, but if your application is approved, it prevents you and your family from being forced to live apart for years while the unlawful presence bar runs its time. You’ll be apart for a matter of days instead of years.

Proceed with Caution

That said, there is some risk in exposing your illegal status to the government. If the only thing standing between you and a green card is your unlawful presence, applying for the provisional waiver is probably worth the risk, but be careful. It’s worth consulting with a competent immigration attorney about your chances of success with the waiver.

However, if there are other factors that stand between you and a green card, a provisional waiver might not be so helpful. A provisional waiver does not cover criminal issues, fraud, or any other waivers you might need before you can adjust your status.

ligibility for the I-601A

In order to apply for a provisional waiver, you must be eligible to adjust your status and have a visa application in the works. When the provisional waiver was first introduced in 2013, only people whose US citizen parent or spouse could file a visa application for them were eligible but in 2016, eligibility expanded considerably. Now, if you are eligible for an immigrant visa through an immediate relative, employment, family-sponsored immigration, or through the diversity lottery, you can apply for a provisional waiver.

However, just like with the I-601 waiver, you must have a qualifying relative. You must be the son, daughter, or spouse of a US citizen (USC) or legal permanent resident (LPR). Additionally, you must be able to prove that your USC or LPR spouse or parent will suffer extreme hardship by your absence. Additionally, you must be physically present in the United States in order to apply.

A provisional waiver for unlawful presence doesn’t work for everyone, but when you fit the criteria, it makes the process of adjusting your status so much less daunting. No one wants to be stuck living apart from family for years at a time. This waiver can really speed up an otherwise unfathomably long process.

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