I-601A Unlawful Presence Waivers – General Information

What is an I-601A unlawful presence waiver?

An I-601A unlawful presence waiver is a way to overcome an immigration obstacle known as “unlawful presence”, the “3-year bar” or the “10-year bar” that makes it very risky for people who are in the United States to travel to their home country in order to obtain an immigrant visa that would enable them to become permanent residents and get green cards. I-601A waivers are relatively new (the first applications were accepted in March 2013). As a result, you can expect to see some changes in how the waivers are processed and the way the decisions on these waiver applications are made. You should always check with your immigration lawyer to find out the most up-to-date information. In general, this type of waiver is an alternative to the I-601 hardship waiver process for those who qualify.

This risk of traveling outside the United States for an immigrant visa interview is the result of how the 3-year bar and 10-year bar work. The short explanation is that some people who entered the United States unlawfully can only get a green card by applying for an immigrant visa in their home country. But, as soon as they depart the United States for their visa interview they risk not being able to return to the United States for either 3 or 10 years depending on how much unlawful presence they have in the United States.

While people can apply for an I-601 hardship waiver while they are in their home country, the process is time consuming and can lead to lengthy family separations. In addition, there is no guarantee that the waiver will be granted. If the waiver is denied, it may not be possible to return to the United States for 3 or 10 years. As a result, many people who would otherwise qualify for an immigrant visa do not apply for one. The risk of a 3 or 10 year family separation keeps them from making the trip outside of the United States for the visa interview.

The I-601A provisional waiver can help solve this problem by allowing certain people to apply for an unlawful presence waiver while still in the United States. This means that applicants will know before they depart the United States whether they will be able to get a waiver that will allow them to complete the immigrant visa process in their home country. If the I-601A waiver is granted, and all of the other immigrant visa requirements are met, many people should be able to get their immigrant visas and become permanent residents without having to go through a lengthy family separation.

What are the basic qualifications for an I-601A provisional waiver?

The three main requirements for an I-601A provisional waiver are:

  • You have a “qualifying relative” who would experience extreme hardship if you are not granted the waiver
  • You show that you are deserving of a discretionary approval of the waiver
  • You have no other inadmissibility issues that could make you ineligible for an immigrant visa

Not all relatives are qualifying relatives. For this type of waiver, qualifying relatives are United States citizen parents or spouses. Children, brothers, sisters and other relatives are not qualifying relatives for this type of waiver. In addition, permanent resident spouses and parents are not considered to be qualifying relatives for I601A waivers.

Extreme hardship is a technical legal term. Key points to keep in mind related to the extreme hardship requirement include:

  • To be granted a waiver, you need to show that your qualifying relative would experience hardship that is extreme compared to the hardship that is normally encountered when there is a family separation. It is not enough to simply show that your family will experience financial hardship. It is also not enough to just show that you or your qualifying relative will be very upset and heartbroken if you are forced to live apart.
  • You need to show that your qualifying relative will experience extreme hardship both if you are forced to live apart and if your relative were to relocate with you to your home country.
  • It isn’t enough to show that you will experience extreme hardship. It is only the hardship that your qualifying relative will experience that will count.
  • You must submit evidence that will document the hardship that your qualifying relative will experience. Simply writing a “hardship letter” without providing evidence to support each of your hardship claims is not enough.

Before Beginning Your I-601A Provisional Waiver Application

Make sure that you understand the waiver application process and what it takes to win a waiver case before you begin your I-601A unlawful presence waiver application. You can learn more about this type of waiver by exploring the articles on this website, requesting a free copy of the Immigration Waiver Hardship Letter Special Report, watching an immigration waiver webinar or viewing the immigration videos on this website. All of this information is available for free before you ever talk to an immigration lawyer. By learning more about the I-601A provisional waiver process before you do anything else, you’ll be able to better decide whether you should hire an immigration lawyer and what questions you should ask your lawyer if you decide to work with one.

Learn more about I601A provisional waivers

To help you better understand I601A provisional waivers, I've collected answers to some of the most frequently asked questions that I run into as an Idaho immigration lawyer:

Frequently Asked Questions About I601A provisional waivers