I-601A Provisional Unlawful Presence Waiver

On January 3, 2013, the U.S. Citizenship and Immigration Services (USCIS) published a final rule on provisional unlawful presence waivers. I-601A applications may be submitted to USCIS beginning March 4, 2013. This rule allows certain immediate relatives of U.S. citizens who are physically present in the United States to file provisional unlawful presence waivers prior to traveling abroad for consular processing of their immigrant visa applications.

  • Who is Eligible for an I-601A Waiver
  1. You may be eligible for a provisional unlawful presence waiver if:
  2. You are physically present in the United States;
  3. You are at least 17 years of age at the time of filing;
  4. You are the beneficiary of an approved immigrant visa petition classifying you as the immediate relative of a U.S. citizen;
  5. You have an immigrant visa case pending with the U.S. Department of State (DOS), for which you have already paid the immigrant visa processing fee; and
  6. You believe you are, or will be at the time of the immigrant visa interview, inadmissible based on having accrued a certain period of unlawful presence in the United States.
  • Who is NOT Eligible for an I-601A Waiver
  1. You are not eligible for a provisional unlawful presence waiver and your application will be rejected or denied if:
  2. You do not meet one or more of the requirements listed above;
  3. You have a pending Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS;
  4. You are in removal proceedings unless your removal proceedings are administratively closed and have not been re-calendared as of the date of filing of the I-601A;
  5. You have been ordered removed, excluded, or deported from the United States;
  6. You are subject to reinstatement of a prior removal order;
  7. DOS acted to schedule your immigrant visa interview prior to January 3, 2013, even if you failed to appear or you or DOS cancelled or rescheduled the interview on or after January 3, 2013.
  8. You do not establish that the refusal of your admission to the United States would result in extreme hardship to your U.S. citizen spouse or parent, or that your application should be approved as a matter of discretion;
  9. USCIS has reason to believe that DOS may find you inadmissible at the time of your immigrant visa interview for grounds other than unlawful presence.
  •  If Your I-601A is Denied USCIS is unlikely to initiate removal proceedings or refer provisional unlawful presence waiver applicants to ICE when USCIS approves or denies the waiver request or if the applicant withdraws his or her I-601A application.
  •  Application Process

If you are in the United States and not in removal proceedings, an I-601A provisional waiver application can be made using Form I-601A.  After filing, you will be required to submit to biometrics collection which includes fingerprints and photographing.  After the i-601A is approved, you must depart the United States for an immigrant visa interview abroad.

  • Standard for I-601A Approval

In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent.

Marriage Green Card and Possible Illegal Entry

I have been dating this guy for a time and we wish to marry at the end year but he is not from the USA.

 I have been reading many things he is here but has no visa or green card we would like to know what to do to obtain one without him having to leave

If your future husband entered the country legally – with a visa, through the visa waiver program or even with a false passport – we can help him obtain a green card in the US. This is a general rule as there are some exceptions. If he did not enter legally then he will likely need to apply for an immigrant visa (green card) and a waiver of inadmissibility and ask immigration to forgive his illegal entry and other immigration violations. Please contact our office to discuss things further.

Visa Waiver Program Entrant Applies for Adjustment of Status

I’m from Germany and I entered the US through with the visa waiver. My wife and I married and we applied for the green card but we filed it after the visa waiver expired. At the marriage interview, I was told that they would not approve my green card because I overstayed and I needed to file an I-601 waiver, Can you help us with this?

There is no requirement for a visa waiver entrant to be in status when they apply for adjustment through a US citizen. The officer who told you this is mistaken and we can speak to him or his supervisor to get this corrected without filing an I-601. However, when a foreign national enters the US through the visa waiver program, they waiver many of their rights that they would normally have if they had used a visa. One of these rights is the right to fight removal. Since you have been present longer than 90 days, you may be removed (deported) without any right to a hearing. Therefore, we must proceed cautiously to get your green card approved an issued.