I-601 And I-601A "Provisional" Hardship Waivers For Relatives With Unlawful Presence In The U.S.

This article originally appeared in our 2016 Newsletter

Some families have heard that their relative is barred from the United States due to prior unlawful presence, and needs a waiver to obtain a family green card. The unlawful presence waiver is necessary when two things occur:

(1) your relative was unlawfully present in the U.S. for 180 days or longer; AND

(2) then your relative left the United States.

After living in the U.S. unlawfully AND thereafter leaving the U.S., your relative is barred from returning again for a period of:

• three years if unlawfully present for 180-364 days; or
• ten years if unlawfully present for 365 days or longer.

This is known as the “3/10 bar.”

If granted, the I-601 waiver gives permission to return earlier than the 3- or 10-year bar period.

How to apply—depends where your relative is located

Form I-601 at the consulate: For those relatives who are already outside the U.S., they must file the I-601 waiver with the U.S. consulate in their home country, either during or after their interview. By filing the I-601 waiver, your relative requests early permission to return because his/her absence is causing extreme hardship to a spouse or parent who is a U.S. citizen or lawful permanent resident. The waiver filing must contain extensive documentation and proof of the extreme hardship. The hardship cannot be based on common factors that every family experiences as a result of separation. It can take up to a year or longer for a decision on the I-601 waiver, and your relative must remain outside the United States this entire time. If the I-601 waiver is denied, then your relative cannot return to the U.S. until the 3- or 10-year period elapses.

Form I-601 with Adjustment of Status: For those relatives who qualify to interview for the green card inside the U.S., the process is called “Adjustment of Status.” They can either file Form I-601 with their application to adjust status, or they can file it during their interview.

Form I-601A "Provisional" waiver inside the U.S.: But for those relatives who are still inside the U.S. but do not qualify to remain and adjust their status, they are required to leave the U.S. and interview in their home country. This is usually when the “3/10” bars get applied—once your relative leaves for the interview after being here without authorization. Most are reluctant to leave and wait outside the U.S. for the lengthy time to get a decision on the waiver.

Fortunately, some may qualify for the I-601A "Provisional" waiver. This is the same waiver request, but it can be filed inside the U.S. and your relative can wait in the U.S. for the decision. If granted, then your relative can leave the U.S. to pick up the green card in the home country, and be eligible to return immediately without having to wait for a decision.

Form I-601A eligibility

The I-601A "Provisional" waiver is not as widely available as the “regular” I-601 waiver filed with a consulate. Here’s who is eligible:

1. People immigrating through the following green card family categories:
   • spouses of U.S. citizens
   • parents of U.S. citizens or
   • children under 21 (unmarried) of U.S. citizens.
2. "Clean" cases where there are no other issues of eligibility, such as other prior immigration violations or criminal record issues.
3. Hardship can only be based on extreme hardship to a U.S. citizen spouse or parent

You or your relative can confer with Hill & Piibe about eligibility, especially if your relative has exited and entered the U.S. multiple times in the past. I-601 and I-601A "Provisional" waiver cases are critical and major undertakings which should be presented in a thorough and compelling manner. Hill & Piibe's free case assessment appointments can let you know if your relative qualifies. More free information online.