The I-601A Provisional Waiver

601A Waiver Checklist & I-601A Fee

  1. Application filing fees
  2. Proof of citizenship status of qualifying relative, if applicable
  3. Proof of relationship to qualifying relative
  4. Copy of Form I-797 indicating approval of the immediate relative petition (Form I-130 or Form I-360), if available
  5. The NVC Immigrant Visa Processing Fee Receipt
  6. Proof of extreme hardship , if applicable

Who needs a 601A waiver

Under US immigration law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States must travel abroad and obtain an immigrant visa before they can receive permanent resident status (green cards). However, those individuals who accumulate more than 180 days of unlawful presence while in the United States must first obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return to the United States.

Under the I-601 waiver process, which is still in place, immediate relatives cannot apply for a waiver until after they have appeared at an immigrant visa interview abroad, and a consular officer has determined that they are inadmissible to the United States. They then must apply for a waiver outside the United States and wait to receive approval before they can return to the United States. Under the new 601A waiver you obtain a waiver before you travel abroad. You should only use the 601A waiver if unlawful presence is the only ground on which a consular officer would deny your immigrant visa application.

Extreme Hardship to US citizen Spouse or Parent

Before the provisional unlawful presence waiver became effective the process of getting a waiver of unlawful presence and the immigrant visa was a lengthy (up to 1 year wait) and uncertain process. In the past foreign nationals who were the beneficiaries of immediate relative petitions would depart the United States uncertain of how long they would be separated from their US citizen relatives and whether they would be allowed to return. This separation often resulted in extreme hardship to US citizen immediate relatives who rely on the foreign nationals for support to do with child care, health care and finances.

i-601a waiver process

Applying for and receiving the i-601a provisional waiver while in the United States – the new way

Beginning March 4, 2013, an eligible foreign national may file for a provisional unlawful presence waiver before they depart the United States to attend an immigrant visa interview. The provisional unlawful presence waiver or I-601A waiver addresses the extreme hardship that this waiver process may cause to qualifying US citizens and shorten the time that eligible immediate relatives and their US citizen relatives would be separated. The 601A waiver allows the waiver to be approved before the foreign national departs the United States. There is therefore no need to wait for a waiver while abroad.

i-601A Waiver Requirements – Are you eligible?

You may be eligible to apply for and receive an i-601a provisional waiver if:

  1. Present in the United States at the time of filing the application and for biometrics at a USCIS application support center;
  2. Upon departing the United States, the only ground of inadmissibility at the time of the immigrant visa interview abroad would be unlawful presence;
  3. You are the spouse or child (not less than 17) of a US citizen;
  4. You are the beneficiary of an approved immigration petition (I-130 or I-360) classifying you as the immediate relative of a U.S. citizen;
  5. You have a case pending with the National Visa Center based on the approved immediate relative petition and have paid the immigrant visa processing fee as evidenced by a State Department Visa Processing Fee Receipt;
  6. You will depart the United States to seek an immediate relative immigrant visa abroad; and
  7. You meet the requirements for a waiver provided in section 212(a)(9)(B)(v) of the Act, except that you must show extreme hardship to your U.S. citizen spouse or parent.

Filing the i-601A waiver

An application for the provisional waiver of the unlawful presence inadmissibility bars under section 212(a)(9)(B)(i)(I) or (II) of the Act is made on immigration form I-601A. The application must be accompanied by the prescribed fee and required documents. It is important that you submit a copy of your receipt for your Department of State immigrant visa processing fee with the I-601A waiver.  Place the fee receipt on top of the Form I-601A when you submit your application.

If you are in removal proceedings you must first have your case administratively closed before you apply for the provisional unlawful presence waiver.

There are many factors to consider before you leave the United States to attend an immigrant visa interview abroad. A provisional unlawful presence waiver does not address other grounds of inadmissibility. If you have other grounds of inadmissibility in your case you will need to apply for a waiver of these grounds of inadmissibility while you are outside the United States. So before you apply for the provisional unlawful presence waiver please consult an immigration attorney to discuss your eligibility.

Published by

Goodin Law P.A.

Goodin Law (A Professional Association) is a Las Vegas immigration law firm founded by attorney Gary David Goodin, a Las Vegas immigration lawyer providing legal services in green card and US citizenship cases. Goodin Law P.A. offers services for marriage green cards, k1 visas, naturalization, citizenship and employment based visas. Attorney Goodin is a member of The Florida Bar and the American Immigration Lawyers Association (Nevada and South Florida chapters) and is authorized to practice immigration law in all fifty states.

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