I-601A Stateside Waiver: Reducing Family Separation
The I-601A stateside waiver process is one of the most common waivers (or “pardons”) used by foreign nationals to overcome unlawful presence in the U.S. after an unlawful entry. Like many immigration steps, step is named after the form we file to initiate the process. Form I-601A is titled “Application for Provisional Unlawful Presence Waiver.” The stateside waiver was a great policy change in the good old days of the Obama administration that addressed a fundamental problem in our immigration system.
The Old System (pre-stateside waiver)
Before the I-601A stateside waiver policy came into effect, spouses of U.S. citizens who entered the country without a visa and had been in the U.S. for more than six months were required to return to their home country before applying for a waiver (or “pardon”) for their unlawful presence in the U.S. The waiver was applied for directly at the consulate and sometimes the consulate took 1-2 years to make a decision on the waiver. This had three very drastic consequences: (1) it separated families for lengthy periods of time, and often applicants had young children living in the U.S., and (2) it discouraged people from applying for their green cards because of the lengthy time required to be spent outside of the U.S.; and (3) if the waiver was denied, the person would be stuck outside the U.S. for 10 years, a risk many people were simply unwilling to take.
The New System: The I-601A Process
The I-601A process addressed all of these problems by allowing individuals to apply for the waiver while still living in the U.S. with their families. This was a hugely positive change because it allowed individuals to wait for a decision on their waiver application while still in the U.S. with their families, and gave them certainty that the waiver was already approved before leaving the U.S. Even with the new process, a person is still required to leave the U.S. at the final step of the process for an interview at the consulate before returning to the U.S. However, with the approval in hand, a person often is only out of the country for a few weeks. This presumes that the person has no other grounds of inadmissibility (reasons to keep the person out of the U.S.) besides their unlawful presence in the U.S.
Even with the new I-601A process, it is extremely important to have a qualified attorney evaluate your case. Many individuals have been stranded outside the U.S. even with an approved I-601A waiver in hand because the consulate identified other grounds of inadmissibility which resulted in a denial of the visa. Consular officers can be very aggressive in inquiring about other grounds of inadmissibility. Therefore, it is important to have a dedicated immigration attorney review your entire history before initiating the process and certainly before leaving the U.S.
The Whole Process
The I-601A process still is still only one of the three steps required to receive your green card based on marriage to a U.S. citizen. The three steps in order are:
- Form I-130: This application only addresses the validity of the marriage. Several forms and a great deal of supporting evidence related to the marriage are required at this step. Typically, USCIS takes about 6 months to approve this step.
- I-601A Stateside Waiver: Only after the I-130 petition is approved can a person advance to the I-601A waiver step. First though, USCIS must transfer the case to the national visa center (“NVC”), which is part of the Department of State. The NVC must then issue the fee for the immigrant visa, which must be paid before the I-601A can be filed. Once the fee bill is paid, the I-601A form and the supporting documentation can be filed.
- Immigrant Visa Processing: After the I-601A waiver is approved, the NVC begins the final steps required before the consular interview can be schedule. The NVC requires the visa applicant to send copies of a number of biographic and other documents to them for review before they will schedule the interview. Once all of the required documents have been sent to the NVC, the NVC will forward the case to the appropriate consulate for scheduling of the interview.
The Legal Standard for the I-601A Waiver: Extreme Hardship to a U.S. citizen spouse or parent
The standard that immigration uses to decide whether to approve a I-601A waiver is the following:
If you were refused entry into the U.S, a U.S. citizen or lawful permanent resident spouse would suffer extreme hardship. Extreme hardship is defined as hardship beyond the normal hardship associated with separation of family members. Positive factors that USCIS considers are health/medical issues with the U.S. citizen or resident, financial support provided by the foreign national, good moral character, family ties to the U.S., country conditions in the foreign country, length of time in the U.S., and any other relevant factor that demonstrates hardship. Negative factors include criminal history, repeated immigration violations (beyond one unlawful entry), lack of close family ties, short time in the U.S., and any other evidence or factor that suggests bad moral character.
I-601A Waivers are Not Required When . . .
If a person entered the country correctly with a visa, and then overstayed their permitted time here, they typically do not need a I-601A waiver. This is because a person qualifies to apply for adjustment of status in the U.S. if married to a U.S. citizen as long as they were “admitted and inspected” when they entered the country (in other words, entered with a visa) and have not subsequently left the U.S. This is because unlawful presence is automatically forgiven for spouses of U.S. citizens if they entered the U.S. correctly. If they did not (they snuck across the border with a visa), they are required to return to their home country in order to enter the U.S. correctly, and when this happens, a penalty is triggered for being in the U.S. without permission. This penalty triggers the need for the I-601A waiver.
I-601A Waivers are Not Allowed When . . .
A person is only eligible for a stateside waiver if their ONLY ground of inadmissibility is their unlawful presence in the U.S. after their last entry. If they have other grounds of inadmissibility (again, reasons to be banned from the U.S.) such as certain crimes, fraud, certain previous immigration violations such as a past deportation, unlawful periods in the U.S. previous to the most recent entry, or other grounds, you cannot apply for a I-601A waiver. If there is a waiver for your other grounds of inadmissibility, you may be eligible to apply for a normal I-601 waiver, however, you must apply from your home country and await a decision there. It is imperative to speak to an immigration lawyer to assess your eligibility for a I-601A waiver and evaluate whether you have any other grounds of inadmissibility.
I-601A Waivers Can Also be Used By . . .
This article discusses the most common use of a I-601A waiver, which is to pardon unlawful presence for a spouse of a U.S. citizen. However, spouses of lawful permanent residents can also apply for I-601A waivers. Additionally, a parent of a U.S. citizen could also apply for a waiver if their parents are U.S. citizens or lawful permanent residents of the U.S. (so the grandparents of the U.S. citizen who is sponsoring their parents). This situation is the least common, but is does occur in some cases. This complexity exists because while a U.S. citizen can sponsor their parents for a green card, the parent is only eligible for a I-601A waiver if their spouse is a resident or citizen or their parents are residents or citizens. But if their spouse was a resident or citizen, this would also likely be the person sponsoring them for their green card. This confusing rule exists because anti-immigrant politicians did not want parents of U.S. citizens using their children to qualify for the waiver.
This page is intended to provide some basic information about I-601A waivers. Always seek the opinion of an experienced immigration lawyer to fully evaluate your case, and to see if you qualify for the I-601A process. If you have any questions, give us a call at (303) 872-6985. A lawyer will be available to answer a few preliminary questions and determine whether it makes sense to come in for a full consultation.
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