- Be physically present in the United States;
- Be 17 years of age or older at the time of filing;
- Be the Beneficiary of an approved petition where an Immigrant Visa is immediately available;
- Have a qualifying relationship with a US Citizen or Lawful Permanent Resident. Qualifying relationships after the November 20, 2014 Presidential Executive Order include Spouses, sons and daughters of US Citizens; and Spouses, sons, and daughters of Lawful Permanent Residents, regardless of Age;
- Have an immigrant visa case pending with the Department of State (DOS), which is related to the approved Form I-130 or I-360 and for which the alien has already paid the DOS immigrant visa processing fee; and
- Believe he or she is, or will be, inadmissible only for unlawful presence in the United States during a single stay.
I-601A – Application for Provisional Unlawful Presence Waiver
Aliens who want to file for an Immigrant Visa or apply for an adjustment of status to qualify for a green card must be admissible. One common ground for inadmissibility is unlawful presence in the United States. This occurs when an alien entered the United States without inspection (i.e., crossed the border illegally without a visa) or overstayed their visa (i.e., entered with a visa but stayed in the US longer than they were permitted). According to the Immigration and Nationality Act, an alien is generally deemed to be inadmissible if he or she: (I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States prior to the commencement of proceedings under section 235(b)(1) or section 240, and again seeks admission within 3 years of the date of such alien’s departure or removal, or (II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States… This means that if an alien was unlawfully present and departs the US either voluntarily or involuntarily, he or she cannot re-enter the US for 3 or 10 years. This is referred to as the “statutory bar.” In certain circumstances, this ground of inadmissibility may be forgiven and the alien will not be subject to this 3/10 year bar if he or she applies for an Application for Provisional Unlawful Presence (I-601A) Waiver. The statutory bar (3/10 year bar) is common for persons crossing the border illegally (entering without inspection). To qualify for a I-601A waiver, the alien must meet the following requirements: