Applying for an Unlawful Presence Waiver: When to Use Form 601-A or Form I-601 

Posted by Ally Bolour | 21 Jun, 2022 | 0 Comments

unlawful presence waivers

For various reasons, U.S. Citizenship and Immigration Services (USCIS) may find you ineligible to be admitted to the U.S. as an immigrant, to adjust your status to legal permanent resident, or to obtain a K or V nonimmigrant visa or Temporary Protected Status (TPS). Depending on your circumstances, you may be able to apply for a waiver of inadmissibility using Form I-601A or I-601. 

Grounds for Inadmissibility

Prior violations of U.S. immigration law is a common reason for a finding of inadmissibility. If you entered the U.S. unlawfully or through fraud or willful misrepresentation or if you abused the terms and conditions of your visa, these are grounds for inadmissibility. If you have accrued more than 180 days but less than a year of unlawful presence during a single stay in the U.S., this renders you inadmissible for three years. Unlawful presence for a year or more increases the inadmissibility period to 10 years. Further, anyone who has previously been removed, or who has accumulated one year or more of unlawful presence, and who enters or attempts to enter the U.S. without being admitted will become permanently inadmissible. 

Other grounds of inadmissibility include certain criminal history, security concerns, certain health reasons and if you are deemed likely to become primarily dependent on the government for subsistence.

Form I-601A vs. Form I-601 

Depending on your situation, you can apply to waive inadmissibility using either Form I-601A or Form I-601. In either case, you must be able to demonstrate that your removal from the U.S. would result in extreme hardship to your U.S. citizen or legal permanent resident parent or spouse.  

Form I-601A

Form I-601A, Application for Provisional Unlawful Presence Waiver is for applicants who are only inadmissible due to a prior period of unlawful presence in the U.S. and are therefore subject to either a three-year or 10-year unlawful presence bar. The provisional waiver process allows green card applicants presently within the U.S. to stay in the country while they wait for a decision on their unlawful presence waiver before departing the U.S. to go through the consular process in their country of origin to adjust their status to legal permanent resident. Applicants must be in the U.S. to file their wavier application and provide biometrics. 

Form I-601

By contrast, Form I-601, Application for Waiver of Grounds of Inadmissibility is appropriate for applicants who are ineligible for admission based on grounds other than or in addition to prior unlawful presence. In most cases, applicants using Form I-601 will be outside the U.S.

Extreme Hardship

Waiver applicants must prove “extreme hardship,” which is not clearly defined and is largely open to the examiner’s subjective judgment. Applicants may focus on demonstrating that their spouse (and children) or parent would suffer extreme hardship if the applicant were removed or prevented from entering the U.S. or if the whole family were to move out of the country to be together. The examiner will consider factors such as the impact on your family members’ career, finances, educational opportunities and health and their ability to adjust to the language and customs if they were to relocate to your home country, as well as the impact to them emotionally, financially and otherwise if you were to be removed or kept out of the U.S.

Pending Legislation

A recent class-action lawsuit, Velasco v. USCIS, filed by Northwest Immigrant Rights Project will impact certain individuals subject to the three-year and 10-year bans due to the agency’s erroneous interpretation of the “unlawful presence bar” of INA 212(a)(9)(B)(i). As a result of the lawsuit, USCIS indicated that it intends to modify its policy interpretation to no longer require these adjustment of status applicants to leave the U.S. during their period of inadmissibility. The agency also said it is not currently denying adjustment applications or requiring applicants to file waiver applications on the basis that the applicant returned to the U.S. within the period of inadmissibility under this section. New guidance will be issued from USCIS after the new policy interpretation is finalized by the Department of Homeland Security. 

The waiver application process is complicated, with cases adjudicated based on the facts of the case, the totality of your circumstances and the strength of the arguments and evidence presented. It is important to have representation from an immigration attorney with expertise in unlawful presence waivers. 

Bolour/Carl Immigration Group is a full-service immigration law firm. Our Palm Springs, Salinas, Monterey, Fresno and Los Angeles immigration lawyers are available to discuss your waiver application, green card application, or related matters. Contact us at 323-857-0034 or [email protected]

About the Author

Ally Bolour

Ally Bolour has been practicing immigration law since 1996. He is the Founding and Managing Partner at Bolour / Carl Immigration Group, a full service immigration law firm based in Los Angeles with satellite offices in Salinas, CA and Palm Springs, CA. He is an Elected Director at the American Immigration Lawyers Association (AILA). Previously, he served on the Board of Trustees at the American Immigration Council. He is a member of the LA County Bar Association & the LGBT Bar Association. Ally is a frequent speaker on immigration issues for AILA and other local, national, and international organizations. He is fluent in Persian.

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