Everyone knows that being unlawfully present in the United States is punishable by law. For many undocumented immigrants, this often means a 3 or 10-year ban from access to the United States. For unlawful immigrants with immediate family in the U.S., this can, unfortunately, mean years of separation before the deportee is even able to apply for legal readmission into the United States.
Fortunately, regulations made by the Department of Homeland Security now permit eligible residents to request a waiver of the multi-year bars for unlawful presence before they leave the US to obtain a green card. In this definitive guide, we will cover the ins and outs of this unique waiver, from who is eligible to how to apply, and (even) how a professional immigration attorney can help.
Understanding Bars for Unlawful Presence (3 and 10 Bars Explained)
For persons who have entered the United States illegally or who have accrued unlawful presence after having overstayed their visa, the possibility of obtaining lawful permanent residence (a green card) is very limited. Unlawful presence is considered a very serious immigration offense that is subject to punishment.
As a result, undocumented immigrants who accrue unlawful presence in the United States, and who leave the country are often subject to multi-year bars based on the amount of time they have accrued unlawful presence in the United States. These bars, known as the “3 or 10-year bar” respectively, were created as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996. The statute imposes re-entry bars on immigrants who accrue “unlawful presence” in the United States, leave the country, and want to re-enter lawfully.
Generally, an immigrant who enters the United States without inspection, or who overstays a period of authorized admission, will be deemed to have accrued “unlawful presence.” Individuals who accrue more than 180 days (but less than one year) of unlawful presence are barred from being readmitted or re-entering the United States for three years, hence the 3-year bar. Those who accrue more than one-year of unlawful presence are barred for ten years, hence the 10-year bar.
As a result of this punitive system, many people who qualify for green cards based on their relationships to U.S. citizens or lawful permanent resident relatives are caught in a catch-22 — under current law they must leave the United States to apply for their green card abroad, but as soon as they depart, they are immediately barred from re-entering the country for a significant period of time. In other words, immigrants who have a chance to legalize their status must choose between staying in the United States unlawfully and leaving the U.S. while taking the risk they might not be able to return.
Fortunately, regulations made by the Department of Homeland Security now permit eligible residents to request a waiver for the multi-year bars for unlawful presence before they leave the US to obtain a green card. This is known as the provisional I-601A waiver application.
What is the I-601A Waiver and Who is it For?
As mentioned above, to previously nullify their 3 or 10 year bar, those with excess unlawful presence in the US could only apply for a provisional waiver until after they were deemed admissible to return to the United States via green card. Unfortunately, because this process took upwards of one-year to finalize, this meant that spouses, sons and daughters of U.S. citizens had to be separated from their families for a considerable amount of time while their waivers were pending. The new program, which took effect on March 4, 2013, now allows eligible persons to wait for the results of the application while in the United States rather than having to leave and wait for a decision outside the country.
The I-601A waiver is an immigration form that allows certain relatives of permanent residents of the United States, who are currently classified as “inadmissible” to the country, to request an exemption of the multi-year bars for unlawful presence in the United States before they leave the US. Otherwise known as the “stateside waiver application” this allows deportees to remain in the United States until their waivers are finalized. Once their waivers are approved by U.S. Citizenship and Immigration Services (USCIS), they will be eligible to attend their appointments for immigrant visas in their countries of origin, and then return to their families in the U.S. within a few days or weeks.
I-601A Waiver Eligibility and Requirements
The I-601A waiver is eligible for anyone who is immediately eligible for an immigrant visa (whether it is family-based, employment-based, through the diversity visa lottery, or a special immigration classification) may apply for a provisional unlawful presence waiver. Other eligibility requirements are that the applicant be:
- At least 17 years of age (which actually doesn’t exclude anyone, because someone can’t accrue unlawful presence in the U.S. until they are 18 years old)
- Physically present in the United States at the time of applying
- Are currently in-process of obtaining an immigrant visa based on a form I-130 petition by a family relative, a form I-140 petition by an employer or an I-360 petition on a qualifying basis
- Are inadmissible to the US because you have had more than 180 consistent days total of unlawful presence after your 18th birthday
- Can provide evidence showing that if the waiver and green card is denied, your spouse or parent who is a US Citizen or lawful resident will suffer extreme hardship
- Are willing to leave the US to obtain an immigrant visa
- Are otherwise admissible to the United States. You cannot, for example, separately ask for a waiver provided you fall under criminal, fraud, or other grounds of inadmissibility. Furthermore, if the consular officer at your visa interview decides that you are otherwise ineligible for your visa on some basis other than unlawful presence, the USCIS-approved provisional waiver will be automatically revoked
The Application Process From Start to Finish
The first step in the I-601A waiver application process is for the U.S. citizen or lawful permanent resident (relative or employer) to effectively request the waiver for the unlawful resident. This means that the resident petitioner (sponsor) must mail a visa petition to USCIS using the Form I-130.
The provisional waiver procedure also allows immediate relatives of U.S. citizens to self-petition under the Violent Against Women Act (VAWA) using the Form I-360 to apply for a provisional waiver.
Only after your I-130, I-140, or I-360 has been approved can you file your Provisional Waiver Application using USCIS Form I-601A, available as a free download from the agency’s website. After paying your immigrant visa processing fee (see below) you will also need to notify the National Visa Center (NVC) of your plans, as this is the agency that will handle your case after USCIS approves the I-130. You can contact them via email at NVCi601a@state.gov.
Upon your correspondence, the NVC will ensure to schedule your immigrant visa interview only after the USCIS has made a decision regarding your provisional stateside waiver application. Failing to notify NVC could result in your consulate interview being scheduled before you are ready.
Once you have officially applied, and all necessary visa documents are filed, you can expect to receive a final response regarding your I-601A waiver within 4 to 6 months after submission. If approved, applicants will be notified of the day and time of their immigrant visa interview. After being notified, applicants are then responsible for making the necessary travel plans to arrive at their appropriate consulate or U.S. embassy for their interview. Until that time, however, applicants are legally authorized to remain in the United States.
Provisional Waiver Application Fee
The fee for Form I-601A is $630 (2019 figure). In addition, applicants under the age of 79 will need to pay the biometrics (fingerprinting) fee, of $85. No fee waiver requests will be considered. You can pay by check, money order, or by filling out and submitting USCIS Form G-1450, Authorization for Credit Card Transactions.
A note about fingerprints: Biometric clearance requires that you will be fingerprinted. This allows the USCIS to check for a criminal and immigration enforcement record via an FBI database. If you suspect this may turn up negative information, consult a lawyer before going any further.
In addition to the form and fee, the USCIS requires that you provide proof of your eligibility by submitting the following documents:
- Your immigrant visa petition approval notice or Department of State (DOS) Electronic Diversity Visa Entrant Status Check printout (if applicable)
- A copy of your Department of Justice EOIR Administrative Closure Order (if applicable).
- A copy of your Form I-797, Notice of Action, showing we approved your Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal (if applicable)
- Your DOS Immigrant Visa Processing Fee Receipt (for immediate relatives, family-sponsored, and employment-based immigrant visa applicants)
- Evidence of your relationship to your qualifying relative (if applicable)
- Evidence of U.S. citizenship or lawful permanent resident status of your qualifying relative (if applicable)
- Evidence of your admission or parole
- Evidence your case warrants a favorable exercise of discretion
- Evidence showing that your qualifying relatives would suffer extreme hardship if you were denied a U.S. visa
- A receipt showing that you paid the required immigrant visa processing fee
Common Mistakes That May Impede the Process
It is well known among immigration attorneys that the USCIS denies on average 25% to 35% of I-601A waivers every year, or about one in every three or four applicants. Thus, it’s important to be aware of common mistakes applicants make. Working with an experienced immigration attorney can greatly help you avoid common oversights and ensure that you have thoroughly prepared I-601A waiver.
While the chances that your I-601A waiver is approved rely on a variety of factors, including the reliability of the facts of your case, the most common reason applicants are denied is by failing to provide sufficient evidence showing that if the waiver is denied, their US sponsor (spouse, parent, child or employer) will suffer extreme hardship. Here, it is essential that you work with an experienced attorney who has prepared successful I-601A waiver applications in the past, and who thoroughly understands the legal basis for establishing “extreme hardship.”
Another common reason for 601A denials is simply that applicants fail to provide enough evidence to support their case. It’s important to keep in mind that cases are evaluated both on the volume of evidence provided, as well as the quality of that evidence. Thus, while many people simply fail to provide all the necessary documents, it is often just as common that applicants do not provide sufficient evidence to back up their case. Making matters worse, many people try to do it all themselves, often making careless omissions and insubstantial claims. An experienced attorney, in contrast, can guide you through the process, ensure that nothing is missed, and provide substance to your documents when necessary.
Other frequent reasons I-601A waivers are rejected include if the applicant was recently married (unless they have children, especially if the primary income provider would be forced to remain at home to care for their children). Applicants are also often rejected in the event that they have had a run-in with law enforcement (being arrested, for example). If this is the case, it is recommended that you provide sufficient evidence confirming the that there was no actual crime involved. If an offense was made, alternatively, it’s best to demonstrate that it was not serious enough to deny a green card. As always, hiring an experienced immigration attorney can help you navigate around these special cases.
The Current State of the I-601A Waiver in 2019
Although no steps have been currently taken to directly affect the role of the I-601A waiver by the current administration, one can only hope that changes do not occur throughout the year. Since 2016, the Department of Homeland Security (which oversees Customs and Border Protection as well as Immigration and Customs Enforcement) has taken significant steps to reduce the number of immigrants coming to the US, and make the lives of those who are already here more uncertain.
Furthermore, refugee admissions have plummeted while arrests of immigrants without criminal records have increased. Moreover, recent initiatives have been taken to strip many immigrants of existing protections, most notably under the Deferred Action for Childhood Arrivals (DACA) program and Temporary Protected Status (TPS). With these measures in place, one can only suspect that additional actions may be taken to further suppress the rights of unlawful immigrants, or make the hundreds of thousands of immigrants currently residing in the U.S. vulnerable to deportation.
Get Help With Your I-601A Waiver Today
Applying for a I-601A Waiver is a notoriously complex process, requiring a thorough understanding of complex eligibility requirements, documents required, filing guidelines, and other necessary steps. Carelessly omitting important documents or not acknowledging certain eligibility requirements could result in you failing to provide all the necessary materials or following important procedures. This could cause delays, or worse, the immediate rejection of your I-601A waiver application.
Fortunately, Johnson & Masumi have decades of experience in immigration law, having prepared hundreds of successful I-601A waiver applications in the past, while providing our clients with need-to-know information and guidance throughout the entire process.
To learn more about how the immigration attorneys at Johnson & Masumi can help you throughout the I-601A waiver process, contact us today!