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.

Form i751 and divorce

I751 and the conditional permanent resident

Form I751 applies to conditional permanent residents. Conditional permanent resident (CPR) status is the immigration status that you get upon entering the United States with an immigrant visa or adjusting status to permanent resident unless the marriage is more than two years old. You can be granted conditional resident status as an original immigrant spouse of a US citizen or permanent resident. The immigrant spouse’s children may also obtain CPR status when the qualifying marriage of their parent is under two years old.

Conditional residents have the same rights, privileges, and responsibilities as lawful permanent residents. They have the right to file petitions on behalf of qualifying relatives and the privilege of residing permanently in the United States in agreement with the immigration laws. CPRs have a duty to register with the Selective Service System when required, and to comply with all laws and regulations of the United States including an obligation to file taxes on  income inside and outside the United States. See 8 C.F.R. 216.1.

Removal of Conditions by Joint Petition

To preserve permanent resident status a conditional resident must fulfill his obligation to file i751 conditions form for removing conditions on residence under INA section 216(c)(1). The filing is due within 90 days of the second anniversary of residence. The petition must be filed jointly with the petitioner who filed an immigration petition or fiance visa petition for you.

However, in certain cases, it is possible to file i751 alone without the petitioner in when the petitioner is dead, abusive or the qualifying marriage is legally terminated.

How are the conditions on residence removed using form i-751?

A conditional permanent resident (CPR) must file an i-751 removal of conditions form with supporting evidence and the correct filing fee within the 90-day period before the two-year green card expires. USCIS may allow late filing of form I751 under certain exceptional circumstances.

The conditional resident and the person who filed the original immigrant visa petition or fiancé(é) petition will file the I-751 form with USCIS. Both parties must sign the form.

The CPR will get an appointment notice with a specific time, date and place to capture his fingerprints, photo and  signature at a local USCIS Application Support Center. In practice a conditional resident will not have to surrender the 2-year Conditional Resident Card previously issued by the USCIS.

The conditional resident must establish that:

  1. The marriage was legal where it took place;
  2. The marriage has not been terminated;
  3. The marriage was not for the purpose of obtaining residency, and
  4. No fee (other than an attorney’s fee to assist filing) was paid.

If the USCIS Service Center Director finds that the marriage was in good faith and not to get around U.S. immigration laws, he may waive an interview. If not, the Director may ask for a marriage immigration interview or start a marriage fraud investigation. With some form i-751 petitions the USCIS may interview couples more than once. If the director approves the joint petition he or she will give written notice of the decision (I-797C, Notice of Action).

conditions i-751 - file forms i-751

Conditional permanent resident divorce

What if my petitioner refuses to sign the i751 petition?

When the marriage relationship is dysfunctional i-751 petitions may need extra care. A divorced or legally separated CPR may ask for a waiver of the joint filing requirement. To do so, the CPR must establish any one or more of the following:

  1. She entered the marriage in good faith, but the marriage was terminated (other than through death);
  2. She entered the marriage in good faith, but she or her child was battered and or suffered extreme mental cruelty;
  3. Termination of status and removal from the United States would cause  extreme hardship.

A conditional  resident who is unable to file a joint petition because divorce or annulment proceedings have started, may not apply for a waiver under the good faith marriage exception until the marriage is legally terminated.

If the couple is separated and has started divorce or annulment proceedings, the USCIS may still approve an I751 petition. The USCIS Service Director may not deny your I751 petition just because you are separated or have started divorce proceedings. However separation or the start of divorce proceedings may suggest that you entered into the marriage to get a green card.

Can I get a waiver if I am separated but not divorced?

There is no waiver of the joint filing requirement if you entered into a good faith marriage but are separated or in divorce proceedings. However, if you are in divorce proceedings and cannot get your U.S. citizen or lawful permanent resident spouse to file jointly, you may still ask for the waiver based on termination of the marriage.

A conditional resident who does this will get a USCIS Request for Evidence (RFE) for a decree with a response time of 87 days. The conditional resident gets the opportunity to prove eligibility for the waiver by submitting a copy of a final divorce decree or annulment.

It is a good idea to seek legal advice during the breakdown of the marriage before pursuing a waiver based upon divorce. You should also consider that obtaining a final divorce decree may take longer than the RFE response time.

What if divorce proceedings start after we filed the joint I751 petition? Do I have to re-file?

If the CPR filed an I-751 petition jointly but later become separated or have a pending divorce the USCIS will issue the CPR a Request for Evidence (RFE) with an 87-day response period. In the RFE, the USCIS will ask the CPR to send a copy of the final divorce decree. It will also request a written statement from the CPR that the jointly filed petition be treated as a waiver petition.

Avoiding-i-751-interview – Bona fide marriage evidence

To avoid an I-751 interview, you must demonstrate to the USCIS that your marriage was in good faith marriage and not just for a green card. You can prove a good faith marriage by showing that you lived together and mixed your finances by having joint assets and liabilities.

Bona fide marriage evidence may include tax returns showing that you filed taxes as married even if one of you made no income. You must show shared experiences – you vacationed together, were together at social outings and spent time together with family and friends.  Evidence of bona fide marriage may also include birth certificate of children together, proof of pregnancy, fertility treatment or even medical records related to a miscarriage.

Conclusion

As each person has a different immigration and marriage situation you should seek specific legal advice on how to file forms i-751 from an experienced immigration attorney. If you have any questions about removing conditions on residency or other immigration through marriage concerns contact us at 702-423-2721 to book an initial consultation. We also offer consultations for complex marriage immigration interview matters.