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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