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  • Writer's pictureD’Andrea Law

Waiver for Unlawful Presence and Illegal Entry

Under current law, most applicants who entered the U.S. illegally and accrued unlawful presence cannot directly apply for permanent residence in the United States, and instead must complete the immigration process abroad. I-601A provisional waiver allows these individuals to submit an application with the United States Citizenship and Immigration Services (USCIS) and get a decision on their case before leaving the United States for consular processing. Obtaining this waiver lets them know in advance that their case will most likely be approved and that they could be back in the US with their families -- as a permanent resident -- in a short period of time.

Who can apply for this I-601A provisional waiver? Only those who meet the following eligibility requirements can apply.

  • Be 17 years of age or older at the time of filing.

  • Be physically present in the United States to file your application for an I-601A provisional unlawful presence waiver and provide biometrics.

  • Have a case pending with the U.S. Department of State, based on:

    • An approved immigrant visa petition (such as a spousal petition or other types of family-based petition), for which the Department of State immigrant visa processing visa has been paid; OR

    • Selection by the Department of State to participate in the Diversity Visa Program under section 203(c) of the Immigration & Nationality Act or the fiscal year for which the alien registered;

  • Will depart from the United States to obtain the immigrant visa.

  • show that if USCIS were to deny your I-601A waiver, your U.S. citizen parent or spouse would suffer "extreme hardship." The extreme hardship factors include health-related issues, economic hardships, educational hardships, country conditions abroad, and any other difficulty or harm faced by the U.S. citizen parent or spouse, if the waiver is not granted.

    • Spouses must demonstrate that their relationship will suffer more than the normal hardship or financial inconvenience caused by family separation.

  • You are inadmissible ONLY for unlawful presence in the United States for more than 180 days but less than 1 year during a single stay (INA Section 212(a)(9)(B)(i)(I)), or unlawful presence in the United States for 1 year or more during a single stay (INA Section 212(a)(9)(B)(i)(II).

    • In other words, you have no other grounds of inadmissibility such as fraud, misrepresentation or convictions of crimes involving moral turpitude; have never received an order of removal (or accepted voluntary departure without departing as required); are not in removal or deportation proceedings; did not make multiple illegal entries into the US after April 1997; are not an applicant for adjustment of status.

After you apply for I-601A provisional waiver, DO NOT depart the U.S. while your application is pending. If you leave before obtaining approval, USCIS may consider your case abandoned and deny it pursuant to 8 CFR 103.2(b)(13). It is also important to appear for biometrics appointment, respond to a request for evidence (RFE), if any, or appear for an interview if requested by USCIS to avoid possible denial of the application.

In sum, I-601A provisional waiver opens a new pathway to lawful permanent residency for certain eligible of individuals. A thorough legal consultation is needed to evaluate all aspects of the individual's immigration history to find the best solution. You should consider consulting with one of our experienced immigration attorneys before starting the process to make sure that you qualify, and that this waiver is the best option for you and your family. We serve clients locally (Glendora, Azusa, Fontana, Riverside, Orange County, El Monte, Baldwin Park, Los Angeles county, West Covina, Corona, Pasadena, Montebello) and nationally.

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