I-601 and I-601A WAIVERS OF INADMISSIBILITYThe document that qualify you as "admisible" during the process to obtain a Green Card
In order to obtain U.S. permanent resident status, otherwise known as a green card, through adjustment of status or consular processing, you must be qualified and “admissible” to the United States. This means that you have not been convicted of particular crimes, immigration fraud or immigration status violations. If you have been found guilty of any of the aforementioned, you may be “inadmissible” to the United States, and therefore ineligible for a permanent resident status or to receive an immigrant visa.
Of these individuals, those whose spouse, child, or parent are U.S. citizens or Legal Permanent Residents (LPR) may be eligible to file an I-601 or I-601A applications to waive your inadmissibility and get the visa or green card if they can prove that they would suffer extreme hardship. Applicants without the appropriate qualifying relatives or who cannot prove extreme hardship may not be eligible for this waiver. Ultimately this could deny them of permanent resident status. In this case, they should consult with an experienced immigration attorney to confirm whether or not they are eligible to file.
I-601, Application for Waiver of Grounds of Inadmissibility
I-601 applications are filed with and adjudicated by USCIS. The USCIS must balance the prior act or acts making the person inadmissible (for example, coming to the U.S. with fake documents) against the hardship caused to the qualifying relative by their absence. The more severe the inadmissibility act or acts, for example, a severe criminal conviction, the more extreme the hardship to the qualifying relative must be.
Once approved, the applicant’s application for their immigration benefit (i.e. permanent resident status or immigrant visa) can be approved. If the individual is in the U.S. and files for adjustment of status, the I-601 application may be filed concurrently with the I-485 adjustment of status application.
To inquire whether you are eligible for this type of waiver, please call us to speak with one of our immigration experts.
What Is Extreme Hardship?
The factors that will amount to extreme hardship vary from case to case because each case is unique and each ground of inadmissibility is evaluated individually.
Generally, extreme hardship is hardship outside the ordinary. This is a hardship that is much greater than just separating from your family member for 10 years. A debilitating medical condition that will require the applicant to constantly care for his/her qualifying relative such as cancer would be a good example of extreme hardship. In this instance, the U.S. citizen/LPR would indeed face extreme hardship if it can be established that the waiver applicant is his/her primary caretaker.
Please note, hardship to the intending immigrant is not counted at all, only hardship to the U.S. citizen or LPR family member. In addition, hardship to children is also not taken into account by the immigration regulations. However, hardship to children can still be used in the waiver petition indirectly as a hardship to the qualifying parent.
Most people will qualify for extreme hardship by a combination of smaller hardships that make one big hardship. For example, lesser medical conditions, educational hardships for the U.S. relative or children, severe financial hardships, family hardships, employment hardships, etc) Each hardship case must be evaluated very carefully in advance by a good immigration lawyer in order to determine what the chances of success are before filing the case.
I-601A, Application for Provision Unlawful Presence Waiver
Foreign nationals who entered the United States without permission or a visa are normally ineligible to adjust their status in the U.S. and must return to their home country to obtain permanent residence status through consular processing. For any foreign national who has lived in the United States without valid status for more than a year, either by entering without a visa or staying more than one year past the visa expiration date, leaving the United States triggers a 10-year bar to being admitted back to the United States. There is no problem to leave the U.S., but the person will not be able to return here for 10 years. In the past, a foreign national who left the United States to consular process for the permanent residence would then be required to file an I-601 waiver based on unlawful presence. The foreign national would then have to wait several months in his or her home country for a decision on the waiver.
In response to the long periods of separation and uncertainty suffered by immediate relatives of U.S. citizens during the immigration process, DHS created a new waiver process that can be filed in the United States before attending an immigrant visa interview abroad. The I-601A provisional waiver is designated for immediate relatives of U.S. citizens only who are inadmissible to the United States only because of their unlawful presence in the United States. Individuals with additional grounds of inadmissibility are not eligible to file this waiver and they will need to follow the procedures for the regular I-601 described above.
Once the provisional waiver is granted, an applicant must make an application for an immigrant visa and later appear for a consular interview at an American consulate abroad to complete the process and obtain permanent resident status. The wait time in the home country is significantly less than under the old I-601 process, usually only a few weeks, and the separation from family members is minimal. The risk in this type of application is also reduced significantly, because you will know ahead of leaving whether your waiver is approved, and if it is not approved, you do not have to risk leaving the U.S. without being able to return for 10 years.
Requirements for I-601A
- You are physically present in the United States.
- You are over the age of 17.
- You have an approved I-130 filed for you as an immediate relative of a U.S. citizen (most commonly spouses).
- You have an immigrant visa case pending with the Department of State and you have paid the immigrant visa fees.
- You are only inadmissible because you have remained in the United States without legal status for more than 180 days without departing the United States – you either arrived without a visa, for example, sneaked through the border more than 6 months ago, or you arrived with a visa but your authorized stay expired more than 6 months ago.
- Your qualifying U.S. citizen Spouse or Parent would suffer extreme hardship if the I-601A Application is not granted (LPR Spouses or Parents do not qualify under the I-601A procedures).
In order to have a good chance of being approved for the hardship waiver, applicants must submit extensive documentation of the hardship to be suffered by their qualifying U.S. citizen relatives.
Filing for Your I-601 or I-601A
You should contact an immigration attorney with experience filing and receiving approvals of I-601 and I-601A waivers prepare your case. The quality of preparing the waiver applications will directly impact the decision in your case. Cases that are poorly prepared will get denied, without a chance to appeal, and cases that are well-prepared and well-documented will be approved quickly. Our attorneys have obtained I-601 and I-601A waiver approvals in dozens of cases. If you have more questions about the I-601 or I-601A waivers, or if you’re ready to proceed with an application, call us today. We will determine the best strategy for your case and help you avoid lengthy separation from your family.