Form I-601A: Provisional Unlawful Presence Waiver

Form I-601A: Provisional Unlawful Presence Waiver

Form I-601A, known as the Provisional Unlawful Presence Waiver, is a program implemented on March 3, 2013, designed for foreign individuals currently living in the United States who are statutorily eligible to obtain an immigrant visa but cannot apply for adjustment of status due to periods of unlawful presence. This program aims to reduce the time that a U.S. citizen or permanent resident and their foreign family member spend separated during the consular application process.

What is the I-601/I-601A waiver, and who should apply for it?

Foreign individuals lawfully present in the United States can be sponsored by their U.S. citizen or permanent resident relatives to obtain a green card under the Family-Based Immigrant Visa program. In the case of foreign individuals married to U.S. citizens, if they entered the U.S. without inspection (i.e., crossed the border without being inspected and admitted by an immigration officer) and stayed for more than 180 days, they are considered ineligible to adjust their status from within the U.S. due to unlawful presence. In the case of foreign individuals married to U.S. permanent residents, if they entered the U.S. without inspection and stayed for more than 180 days, or if they exceeded their authorized period of stay by more than 180 days after a legal entry, they are considered ineligible to adjust their status from within the U.S. due to unlawful presence.

Foreign individuals who have accrued more than 180 days of unlawful presence face a 3-year reentry ban to the U.S. If they have been unlawfully present in the country for more than 1 year, they have a 10-year reentry ban. These bans are triggered when they leave the U.S.

Before the implementation of the Provisional Unlawful Presence Waiver, the only option for individuals who had been unlawfully present in the U.S. for 180 days or more but otherwise qualified for an immigrant visa, employment visa, or diversity visa was to leave the U.S. and apply for consular processing at the U.S. consulate in their home country. They also had to file Form I-601, Application for Waiver of Grounds of Inadmissibility, which, if approved, would waive the 3 or 10-year reentry ban. Consular processing took a long time, and applicants could expect to wait 1 to 2 years for their green card approval and Form I-601 waiver.

To reduce this lengthy waiting time, Form I-601A, Provisional Unlawful Presence Waiver, was introduced in March 2013. With the Provisional Unlawful Presence Waiver program, foreign individuals who have been unlawfully present in the U.S. for 180 days or more but are eligible to apply for a green card through the family-based visa program can apply for the unlawful presence waiver while still in the U.S. The foreign individual can stay in the U.S. until USCIS adjudicates the Form I-601A. If the provisional waiver application is approved, the applicant still needs to leave the country and apply for their green card through consular processing. However, typically, the waiting time outside the U.S. is much shorter than under the previous system, as they are not required to return to their home country until the visa interview is scheduled.

Who qualifies for Form I-601A, Provisional Unlawful Presence Waiver?

To qualify for the provisional unlawful presence waiver, the applicant must meet ALL of the following conditions:

  • Be at least 17 years old and physically present in the U.S. when filing Form I-601A, Provisional Unlawful Presence Waiver.
  • Have a pending immigrant visa case with the Department of State (DOS) in the following categories:
    • The applicant is the principal beneficiary of an approved Form I-130, Petition for Alien Relative; an approved Form I-140, Immigrant Petition for Alien Worker; or an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, and has paid all required visa processing fees.
    • Be the spouse or child of a principal beneficiary of any of the visa categories mentioned above and have paid all necessary visa processing fees.
    • Have been selected by the Department of State in the Diversity Visa Program and is currently in the process of obtaining the visa.
    • Be the spouse or child of a Diversity Visa Program selectee.
  • Be able to demonstrate with evidence that the denial of their reentry to the U.S. would cause extreme hardship to their U.S. citizen or legal permanent resident spouse or parent, and/or evidence of emotional, financial, or medical difficulties.
  • Believe that they are or will be inadmissible to reenter the U.S. due to a period of unlawful presence of more than 180 days or more than 1 year during a single stay.
  • Not be subject to any other grounds of inadmissibility other than unlawful presence.

Situations where an applicant might otherwise qualify for Form I-601A, Provisional Unlawful Presence Waiver, but are currently in deportation proceedings are complicated and beyond the scope of this article; an immigration lawyer can provide guidance in such cases.

The process of applying for a provisional waiver can be complex. Knowing all the factors that can affect eligibility and whether there are any pitfalls in applying for the waiver is challenging. Consult with an experienced immigration lawyer to determine the best course of action for you and how to successfully file a provisional waiver application.