Overview of I-601A Provisional Waiver

I-601A provisional waiver is an provisional waiver for undocumented individuals who cannot adjust their status (inadmissible) because they are inside the United States illegally, often entering the U.S. illegally. Unlike I-160 Waiver, applicants for the I-1-601A provisional waiver can apply within the U.S. before leaving the country for the Consular interview overseas. Once the I-601A provisional waiver is approved, the Applicant’s unlawful presence will be provisionally waived. The Applicant will be required to depart the United States and apply for an immigrant visa with the provisional waiver at a US Consulate outside the United States.

The I-601A provisional waiver only waives unlawful presence and does not waive other grounds of inadmissibility. It is important to try and determine if you have other grounds of inadmissibility before departing the United States. Upon approval of the immigrant visa outside the United States and entry into the United States with the immigrant visa, you will be a permanent resident (green card status). A green card will be mailed to the Applicant upon being admitted with the immigrant visa.

Who are eligible for I-1601A Provisional Waiver?

Must be eligible for an immigrant visa, through family, employment, or investment;
Must have a qualifying family member that is a US citizen or Lawful Permanent Resident Spouse or Parent;
The qualifying relative will suffer extreme hardship if they were to live outside the US with the Applicant or if required to live in the US without the Applicant.
Must be Inadmissible for Unlawful Presence Only. You are not eligible to adjust status because you entered the U.S. unlawfully.

Qualifications for I-601A Provisional Waiver

To qualify for a I-601A waiver, you must meet the following requirements:

Be physically present in the United States to submit your application;
Be 17 years of age or older at the time of filing;
Be in the process of obtaining your immigrant visa and have an immigrant visa case pending with Department of State (DOS) because you:

Are the principal beneficiary of an approved Form I-130, Petition for Alien Relative; an approved Form I-140, Petition for Alien Worker; or an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant who has paid the immigrant visa processing fee;
Have been selected by DOS to participate in the Diversity Visa (DV) Program; or
Are the spouse or child of a principal beneficiary of an approved immigrant visa petition who has paid the immigrant visa processing fee to DOS; or
Are the spouse or child of a DV Program selectee;
Be able to show that denial of your admission to the U.S. will cause extreme hardship to your U.S. citizen or Legal Permanent Resident spouse or parent;
Believe you are or will be inadmissible only because of a period of unlawful presence in the United States that was:
– More than 180 days, but less than 1 year, during a single stay or
– 1 year or more during a single stay.
– Meet all other requirements for the provisional unlawful presence waiver, as detailed in the relevant law and its instructions.

Proving “Extreme Hardship” for I-160A Provisional Waiver

While an alien may qualify for the I-601A provisional waiver, he or she must also prove extreme hardship to the U.S. citizen relative spouse or parent or Lawful Permanent Resident spouse or parent. The term EXTREME HARDSHIP means that if the U.S. citizen/lawful permanent resident spouse/parent must relocate abroad or the alien relocates without the U.S. citizen/lawful permanent resident, the U.S. Citizen/ lawful permanent resident will suffer extreme hardship. Factors that are considered in determining extreme hardship include health/medical considerations, financial and economic reasons, education, personal considerations, family ties, and the country’s condition. Essentially, the more evidence provided to show hardship to the U.S. Citizen/Lawful Permanent Resident, the stronger the case.

I-160A Provisional Waiver Consular Interview

If the I-601A provisional waiver is provisionally approved in the U.S., an Immigrant Visa appointment will be scheduled at the U.S. Consulate of the alien’s home country. The alien will have to travel abroad to attend the interview. While traveling abroad, the 3/10 year bar will be triggered, however, if the visa is issued, the alien will be permitted to return to the U.S. as a permanent resident because of the I-601A provisional waiver. If the I-601A case is denied by USCIS in the U.S., the alien will generally not be placed in removal proceedings provided there are no complicated criminal or national security issues. Generally, the consequences are financial. However, with the recent changes in increased enforcement there is a risk of removal proceedings if the I-601A provisional waiver is denied.

Common Scenario of I-601A Provisional Waiver Case

An undocumented individual illegally crosses the border between Mexico and the United States for only 1 time after April 1, 1997. After a few years of living in the U.S., he marries a U.S. citizen. He has U.S. citizen children, a job, a house and pays taxes. Now he wants to qualify for a green card. The U.S. citizen spouse files a Form I-130, Petition for Alien Relative, which is approved. However, the alien is ineligible to adjust his status due to entering the United States without inspection (i.e., crossing the border without inspection).

To overcome this ineligibility, the alien applies for I-601A, Application for Provisional Unlawful Presence Waiver. After the I-601A waiver is provisionally approved in the U.S., the alien goes back to Mexico to attend the Consulate Interview and the Immigrant Visa is granted. Now, the alien may re-enter the U.S with the immigrant visa and be admitted. as a permanent resident with his or her green card and live in the U.S. permanently. This is what is commonly referred to as “fixing an illegal alien’s papers.” Please note that unlawful presence is only one of many grounds for inadmissibility. If you are inadmissible for other grounds, or if you are abroad and deemed ineligible for a visa because you are inadmissible to the U.S., there may be other Waivers of Inadmissibility available, such as I-160 Hardship Waiver.