I-601A Unlawful Presence Waiver – Eligibility

by Richard Bracken on November 3, 2014

Currently, one of the more common waivers needed to immigrate to the United States is the Unlawful Presence waiver.  It is made necessary when a person is in violation of INA §212(a)(9)(C)(i)(II). This particular waiver is often required for intending immigrants who have lived in the U.S. unlawfully for more than six (6) months, thereby accruing more than six (6) months of “unlawful presence”.  Without the waiver, eligible individuals would be inadmissible for periods of three (3) to ten (10) years.

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Prior to 2013, most individuals who needed an unlawful presence waiver were required to leave the U.S. and then await its adjudication while outside the U.S. In the meantime, families were often separated for many months at a time. Occasionally, the initial determination process took a year or more before a decision was finally rendered. Meanwhile, there was no certainty that the waiver would even be granted after such a long wait.
On January 3, 2013, the U.S. Citizenship and Immigration Services (USCIS) issued a final rule allowing for the pre-adjudication in the U.S. of that particular waiver, known as the Provisional Unlawful Presence Waiver, prior to the immigrant’s departure from the U.S. Essentially, it allows qualifying families to remain together throughout the determination period with the satisfaction of knowing that the critical waiver is granted before they leave the U.S.  Moreover, as will be discussed in a future post, in the unfortunate event that the waiver is denied, an I-601A waiver can often be re-filed.

To date, this final rule has benefited MANY families who are now able to leave the U.S. to attend their immigrant visa interviews overseas without the scary uncertainty of having to await a lengthy waiver determination while separated from their families.  For instance, none of my unlawful-presence-only clients who have attended immigrant visas after the approval of their Provisional Waivers, otherwise known as the I-601A waiver, have been required to remain outside the U.S. for more than two weeks.
Basic eligibility for an I-601A waiver is as follows:

• Presence in the U.S. at the time of filing the I-601A and biometrics collection
• 17 years or older at the time of filing
• Inadmissibility is ONLY for the 3/10 unlawful presence bar
• He or she is an immediate relative and is the beneficiary of an approved I-130 or I-360 petition
• The immigrant relative petition is pending with the State Department and the applicant has paid visa processing fees.
• The immigrant will depart the U.S. to obtain the immigrant visa.
• The immigrant meets the extreme hardship requirements to the U.S. citizen spouse or parent and warrants a favorable exercise of discretion.

In a follow up post I’ll cover some of the more common I-601A ineligibility problems that we’re seeing regarding the I-601A waiver. Please be aware, that the only way to know for certain whether you are a good candidate for an I-601A waiver is by speaking with a licensed immigration attorney.

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An unexpected policy change by the Obama administration occurred on November 15, 2013, extending the current policy of granting Parole in Place (PIP) for the spouses of military members to also include the parents and children of not only military service men and women, but veterans as well!

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Why is Parole in Place significant? It is quite common for immigrants to face big obstacles in legalizing in the U.S. if they previously entered the U.S. without a visa. This is commonly referred to as “entry without inspection” (EWI). Most immigrant spouses and parents of veterans and soldiers who have been petitioned for, but who have entered EWI, are usually required to return to their home country to attend a visa interview at a U.S. consulate abroad. Most family members in this circumstance have also, coincidentally, remained in the U.S. for more than a year after having entered EWI. These combined circumstances typically trigger the most common inadmissibility, which is the accrual unlawful presence. Without a waiver, spouses with unlawful presence of over one year are usually considered inadmissible for up to ten (10) years once they have stepped foot outside the U.S. to attend the consular interview. This is also the case for immigrants who entered the U.S. with visa’s but who have since fallen “out of status”.

For this reason, many families are understandably unwilling to start an immigration process due to the risks that are involved with leaving the U.S. and facing inadmissibility and the possibility of denied waivers. Fortunately, for the immigrant spouse, child, or parent of U.S. soldiers and veterans, there may be hope thanks to the prospect of being granted “Parole in Place”.

Once granted, the U.S. soldier or veteran may then petition for his or her spouse, child, or parent from within the U.S. to that of lawful permanent residence without anyone having to leave the country, and thus potentially bypassing the most common inadmissibility issue.

Parole in Place requests are considered by the District Director on a case by case basis. One must utilize great care in seeking it and should not attempt to obtain it without the assistance of a competent .

 

Richard Bracken is a veteran who has served in the Office of the Staff Judge Advocate General (JAG) for the U.S. Army.  Throughout the years he has helped innumerable soldiers and veterans, and can advise you on obtaining Parole in Place from within the U.S.  For a free consultation about obtaining Parole in Place, please contact us today.

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Deferred Action for “DREAMers”

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Waiver of the K-1 Visa Two-Year Meeting Requirement

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I-751 Removal of Conditions

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Individuals who have been granted lawful permanent residency through his or her spouse, and within two years of entering the marriage, are usually deemed to be “conditional” permanent residents.   Under the law, conditional permanent residents must follow a comprehensive procedure to have his or her conditional status removed.  Conditional residents who do not comply with the requirements at the end […]

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Contacting the U.S. Consulate abroad

October 12, 2009

Nearly every case for a visa is ultimately decided within a U.S. Consulate abroad, sometimes referred to as a U.S. embassy.  Each Consulate processes cases differently; nevertheless, the Consulate will eventually communicate with the parties at some point.  The way it does this also varies but will be made with the information submitted to it in the I-129f […]

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