Hardship Waivers: I 601A Provisional Waiver, How and When To Apply
Since March 4th, 2013, “miracle” waivers have been available to immigrants who resided in the country without authorized or lawful status, had an approved petition allowing them to seek immigrant visas, but could not otherwise adjust their status. The difficulty before these waivers became available for most immigrants came from a requirement to have a “legal entry” when adjusting status in the US and being in lawful non-immigrant status continuously from the date of entry. The provisional waiver allowed these immigrants to complete most of the immigration steps in the US, and leave the US only for about 2 weeks to obtain an immigrant visa and return to the US as green cardholders.
The first step in the immigration process is the petition portion; many people refer to this as the “visa stage” when a person receives an approved petition based on their family member’s filing, employer’s petition, or DV lottery. Once the petition is approved, an eligible person would file an I-485 adjustment of status. However, without a legal entry, and/or continuous presence in lawful nonimmigrant status, a person cannot adjust their status in the US. Note that only immediate relatives such as spouses, children, and parents of US citizens are allowed to adjust status in the US without a waiver if they overstayed their visas. There are a few special immigrant filings, and individuals eligible for parole in place, most common individuals with immediate family military members or veterans who do not need to leave the country, and both unlawful presence and “illegal” entry can be forgiven to them. However, in most cases, the applicant seeking a green card (who does not have a “legal” entry) will need to leave the country, schedule an appointment for a visa in a US consulate overseas, and pass an interview to re-enter the US as a lawful permanent resident. An example of such individuals would be those who “crossed” the border, entered the US on K1 visas but did not adjust status based on the petition filed by the fiancé, C1/D entrants, visa waiver entrants, those who overstayed their visas and are seeking to be petitioned by employers...
But for those who accumulated 180 days and more of unlawful presence, when they leave the US, they will trigger an automatic bar on re-entering the country for a minimum of 3 years and a maximum of 10 years. The I-601A waiver helps to “waive” or forgive the unlawful presence and remove the automatic bar due to the unlawful presence. The good news is, anyone eligible can apply for an I-601A waiver while they remain in the US, and it does not trigger an automatic referral to immigration court. If a person is subject to other grounds of inadmissibility, such as misrepresentation/fraud, for example, I 601A will not help by itself. An additional waiver will have to be submitted as well, usually after a denial of a visa at the interview. It is crucial to determine if a person can be subject to other grounds of inadmissibility: an unsuspected person may file and receive an approval for I-601A waiver, leave the US for an interview, and nevertheless would not be able to return to the US because other grounds of inadmissibility were found to apply to him/her: claim of a US citizenship; fraud/misrepresentation; health grounds.
I 601A waiver can be used in combination with other waivers. But a filer needs to remember that various waivers have different qualifying relatives and standards for approval. For example, if a person has a previous unexecuted removal/deportation order, a person would have to file an I 212 waiver first. That waiver has its own standard for approval. Only if I 212 waiver is granted, a person may file then I 601A waiver. If a person has waivable criminal issues or fraud/misrepresentation issues, he/she can file for the I 601 waiver after the interview at a consulate. Of course, it means longer wait times before a person can come back to the US, but it can be a solution rather than none.
For a comprehensive explanation of the standards used for waivers’ decisions, please visit here.
If you need help with waivers, please call New York Immigration lawyers to reserve your confidential appointment at 917-885-2261.