Basics About the Unlawful Presence Waivers

May 16, 2016 | 601-Waiver

As a Miami immigration lawyer, I have represented many clients who have requested relief under unlawful presence waivers. Below are some frequently asked questions.

What is the Unlawful Presence Waiver for?
The provisional unlawful presence waiver process allows immediate relatives who only need a waiver of inadmissibility for unlawful presence to apply for that waiver in the United States before they depart for their immigrant visa interview.

This new process was developed to shorten the time that U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States. If you have any questions in regard to this,you may want to speak with an immigration lawyer in Miami.

What is a Traditional unlawful presence waiver (I-601)?
Usually, to obtain an unlawful presence waiver, you needed to apply for it after your green card interview at a United States consulate abroad.  Although the process has been simplified for some, many green-card applicants must still go through the traditional process for an unlawful presence waiver.

To obtain that waiver, you must satisfy the following requirements:

  • You are the spouse, child (unmarried and under 21), or parent of a U.S. citizen or permanent resident; and
  • You can show that the denial of the waiver and green card would result in extreme hardship to your U.S. citizen or permanent resident spouse or parent.

There is no one way to prove extreme hardship, and every case is unique.  For that reason, you should speak to a Miami immigration lawyer so that you can give him or her the full picture.

Provisional unlawful presence waiver (I-601A)
Fortunately, in early 2013, the process for requesting an unlawful presence waiver became easier.  If you have a U.S. citizen in your immediate family – that is, if your spouse, parent, or unmarried child under the age of 21 is a U.S. citizen – you may now request a provisional unlawful presence waiver (Form I-601A) before you leave the country and pursue your green card application abroad.

The new rule means that (1) you will likely spend less time separated from your job and family here in the United States, and (2) if your request is denied, you will not suddenly find yourself stranded in your home country.

Despite the convenience of applying for a provisional unlawful presence waiver in the United States, it does carry a more stringent hardship requirement.  To satisfy the hardship requirement for a provisional unlawful presence waiver (I-601A), you must show that the denial of the waiver and green card would result in “extreme hardship” to your U.S. citizen spouse or parent.  Unlike the traditional unlawful presence waiver (I-601), to qualify for the provisional unlawful presence waiver (I-601A), you may not rely on any hardships that your permanent resident relatives would face.

All together, the requirements for a provisional waiver are:

  • You are 17 years old or older;
  • You are in the United States at the time of filing the request for a provisional waiver;
  • You are the spouse, child (unmarried and under 21), or parent of a U.S. citizen;
  • You have an approved visa petition (typically Form I-130), a pending immigrant case with the Department of State, and you can provide a visa processing fee receipt;
  • You can show that the denial of the waiver and green card would result in extreme hardship to your U.S. citizen spouse or parent;
  • The Department of State did not schedule your immigrant visa interview for your current green card application before January 3, 2013;
  • You are willing to leave the United States after your request for a provisional waiver is granted so that you can pursue your green card at a U.S. consulate abroad;
  • You are not in removal proceedings, or if you are, the proceedings have been administratively closed;
  • You are not inadmissible on any other ground besides the unlawful presence;
  • You are not subject to a final order of removal; and
  • You do not have a pending application for adjustment of status (I-485) with USCIS.

If you have any questions in regard to the I-601A provisional unlawful presence waiver, you may want to contact a Miami immigration lawyer for a consultation.

What would make me ineligible for a provisional unlawful presence waiver?
You are not eligible to apply for a provisional unlawful presence waiver if you:

  • May be subject to one or more grounds of inadmissibility other than unlawful presence.
  • DOS initially acted before January 3, 2013, to schedule your Immigrant Visa (IV) interview for the approved immediate relative petition upon which your provisional unlawful presence waiver application is based, even if your immigrant visa interview has been canceled, you failed to appear for the interview, or your interview was rescheduled on or after Jan. 3, 2013.
  • You are in removal proceedings that have not been administratively closed.
  • At the time of filing, you are in removal proceedings that have been administratively closed but have been placed back on the EOIR calendar to continue your removal proceedings.
  • You do not meet one or more of the requirements, as outlined in the Form I-601A and its instructions.

Again, if you have any questions in regard to the any of the conditions listed above, you may want to speak with an immigration attorney in Miami in regard to your concerns.

If you have would like more information about Unlawful Presence Waivers (I-601), please contact Miami immigration lawyer Michael G. Murray, Esq. at (305) 895-2500 or visit our website at murraysilva.com.