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Unlawful Presence I-601A Waiver

A little background: The Immigration and Nationality Act (INA) under sec. 212(a)(9)(B) imposes re-entry bars on immigrants who accrue “unlawful presence” in the United States, leave the country, and want to re-enter lawfully. Generally, an immigrant who enters the United States without inspection, or who overstays a period of authorized admission, will be deemed to have accrued unlawful presence. Individuals who accrue more than 180 days, but less than one year, of unlawful presence are barred from being re-admitted or re-entering the United States for three years, and those who accrue more than one year of unlawful presence are barred for ten years.

What Is a Provisional Waiver and Who Is Eligible?

Under the traditional process, an immigrant visa applicant appears for an interview at the U.S. consulate and if the consular officer determines that the person is inadmissible for unlawful presence, but is eligible for a waiver, the consular officer places the case on hold to allow the person the opportunity to apply for the waiver. Unfortunately, the person must wait outside the United States, separated from his or her family, while the waiver is adjudicated over a period of many months or even years. This created a great deal of uncertainty for families who had to leave the country not knowing whether or when they would be allowed to re-enter.

The federal government promulgated a rule in August, 2016 expanding eligibility for a provisional waiver to anyone meeting the waiver requirements under the Immigration & Nationality Act (INA). In other words, anyone coming through the employment-based immigration system (I-140), the diversity visa lottery (DV), the family-based immigration system (I-130), or any other immigrant classification (I-360 miscellaneous category) may be eligible for a provisional waiver as long as they can demonstrate “extreme hardship” to a U.S. citizen or Lawful Permanent Resident (LPR) spouse or parent. The 2016 rule also expands eligibility to certain individuals with final orders of removal, deportation, or exclusion.

In summary, I-601A is an immigration application form and process that allows certain relatives of United States citizens or permanent residents to request a waiver of the multi-year bars for unlawful presence before they leave the U.S. instead of afterwards. The form is also referred to as a “provisional waiver application.”

To apply for the I-601A waiver, you must:

  • Be physically present in the United States;
  • Have an approved I-130 Petition (by a relative), I-140 Petition (by an employer), or I-360 Petition (certain other special categories);
  • Be inadmissible to the United States because you have spent more than 180 days unlawfully present here after your 18th birthday;
  • Have a qualifying relative who would suffer extreme hardship if the waiver is not granted. The qualifying relative must be a U.S. citizen or Lawful Permanent resident; The qualifying relative must be a spouse or parent (NOT your child, though hardship to a child can be part of the argument for hardship to the qualifying relative); The qualifying relative does not need to be the person who filed the I-130 family immigrant petition for you (in other words, if your spouse petitions for you, the qualifying relative can be a parent); You can have more than one qualifying relative; USCIS will aggregate their hardship in order to determine “extreme hardship.”

Persons Not Eligible to Apply

If any of the following apply to you, you may not be eligible to apply for an I-601A waiver:

  • You are under 17 years old;
  • You are inadmissible for a reason other than an overstay;
  • You have had prior deportation proceedings or were deported and have not had your removal proceedings terminated, or you are under final removal or deportation orders from Immigration Court;
  • You had an immigrant visa interview at the U.S. Consulate scheduled by a consular officer before January 3, 2013 (even if the actual interview was scheduled for a date after January 3, 2013), you are not eligible to apply for a provisional waiver. This is also true for applicants who did not show up for their interview, cancelled their interview, or rescheduled their interview;
  • You are permanently barred. The “permanent bar” applies to people in two scenarios: You have been unlawfully present in the United States for a total period of more than one year after 1996, and have then re-entered or attempted to re-enter the United States unlawfully; or you have been ordered removed from the United States, and then re-entered or attempted to re-enter the United States unlawfully.

Note that a provisional waiver is not necessary if the applicant for a family-based green card is the spouse, parent, or child under age 21 of a U.S. citizen (immediate relative) and if the applicant entered and remained in the country with a valid visa (such as a visitor or student visa and most other visa categories), that applicant is usually eligible to obtain their green card in the United States through “adjustment of status."

What Is “Extreme Hardship?”

USCIS guidance clarifies the steps that must be taken to adjudicate an extreme hardship waiver and provides a list of factors that USCIS may consider when making a determination. The guidance further clarifies that to be considered “extreme,” the hardship must exceed that which is usual or expected and must go beyond what is typically associated with deportation.

USCIS and the waiver applicant must consider two different scenarios:

  1. Extreme hardship may occur if the family member remains in the United States while the applicant remains outside of the country. For example, if the applicant is the primary caretaker of an ill family member, separation may result in extreme hardship.
  2. Extreme hardship may occur if the family member leaves the United States to reside with the applicant elsewhere. For example, if both were to reside in the home country, the family member may be subject to ostracism, discrimination, or persecution, or may not have access to necessary medical treatment.

The guidance includes a lengthy list of social, cultural, economic, health, and other conditions that may be considered relevant, and USCIS is directed to examine the totality of the evidence to make a hardship determination. 

What are the qualifying factors for Extreme Hardship?

There are five broad hardship factors that may support a finding of hardship:

  • Family ties and impact may include the Qualifying Relative’s (QR) family in the United States (and possibly lack of family in the foreign country where the applicant would have to relocate if the waiver were denied), caregiver responsibilities, including possibly an elderly parent or other family member that is dependent financially or emotionally on the applicant or Qualifying Relative, the nature of the relationship between the applicant and Qualifying Relative, the Qualifying Relative’s age and length of residence in the United States, and the Qualifying Relative’s prior or current military service.
  • Social and cultural impact takes into account the Qualifying Relative’s ties in the United States and also in the country of relocation, the Qualifying Relative’s integration into U.S. culture, ability to integrate into the culture of the country of relocation, ability to communicate and maintain their U.S. ties, language ability, educational opportunities, and job training.
  • Economic impact refers to financial hardship due to reduced employment opportunities for the Qualifying Relative in the country of relocation; impact of sale of home, business, or other assets; impact of termination of business practice; decline in standard of living; ability to recoup losses or repay student loans; cost of extraordinary needs, such as special education for children; and cost of care for family members.
  • Health conditions and care pertains to the availability and quality of medical treatment for family members, especially the Qualifying Relative, with health problems. It also includes the psychological impact on the Qualifying Relative, which may include the toll of worrying about the applicant if the Qualifying Relative does not relocate with the applicant, or worrying about other close family members left behind if the QR does relocate, or witnessing the suffering of the applicant.
  • Country conditions pertains to the general country conditions in the country of origin/relocation, and also specific conditions in the exact area where the applicant, and possibly her family, would have to relocate. Conditions include civil unrest, U.S. military operations, U.S. economic sanctions, ability to handle environmental catastrophes, and also certain U.S. government designations that indicate the country is unsafe or unstable, such as: TPS designation, Danger Pay for U.S. government works stationed in the country, withdrawal of Peace Corps from the country due to security reasons, and State Department Travel Advisories. Country conditions are referenced by official reports from the U.S. Department of State and NGOs such as Amnesty International or Human Rights Watch, as well as news articles about conditions in the country or region. The presence of high-level Travel Advisories for the country of relocation can lead to increased risk if the Qualifying Relative chooses to relocate with the applicant, or increased psychological trauma if the Qualifying Relative stays in the United States, due to heightened fear for the applicant’s safety. 

Hardship to the waiver applicant (the immigrant) is not a factor, and hardship to his or her children is not a factor (even if the children are U.S. citizens) unless hardship to the children directly affects the qualifying relative (spouse or parent of the applicant).

If my provisional waiver application is approved, does that guarantee that I will be granted an immigrant visa at the U.S. Consulate?

The approval of an I-601A Provisional Waiver does not guarantee that the U.S. consulate will grant an immigrant visa. The applicant must still show the consular officer that they are otherwise eligible for the immigrant visa.

If my waiver application is denied, can I file it again in the future?

Yes, especially if your circumstances have changed. The USCIS filing fee will need to be paid again.

If my provisional waiver application is denied, will I be deported?

The Department of Homeland Security recognizes that it does not have the resources to deport every person who is present in the U.S. without authorization. The DHS therefore focuses its resources on deporting people who have connections to terrorism or gangs, who have criminal records, or who have entered the United States illegally since January 2014.

What type of information should I gather for my application?

Since the I-601A waiver is judged on a case by case basis, your approval rate will rise if your case is well organized and professionally presented with citations to applicable statutes and regulations. Confer with an experienced immigration attorney about how your qualifying relative would suffer if he or she had to stay in the United States without you, or had to depart the United States to go back to your home country.

Please contact our immigration law firm for additional discussion of this category and alternative options.

[Note: Please consult with an attorney specializing in Immigration & Nationality law for professional advice in specific situations.]

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