The Provisional Unlawful Presence Waiver, commonly known as Form I-601A, allows certain immigrant visa applicants who entered the United States illegally to remain in the U.S. with their loved ones while awaiting their immigrant visa interview in their home country.
- Understanding the Provisional Unlawful Presence Waiver (Form I-601A):
The Provisional Unlawful Presence Waiver allows for certain immigrant visa applicants who are relatives of U.S. Citizens or Lawful Permanent Residents to apply to waive certain grounds of inadmissibility that affect persons who have been “unlawfully present” in the U.S. for certain periods of time.
For immigrants who are unlawfully present in the U.S. for longer than 180 consecutive days but less than one year, they face a 3-year bar of admission into the U.S. Section 212(a)(9)(B)(i)(I). For immigrants who are unlawfully present in the U.S. for longer than a year, they face a 10-year bar of admission into the U.S. Section 212(a)(9)(B)(i)(II). This bar of admission is only valid if the immigrant is removed from or departs voluntarily from the U.S. and later seeks reentry.
This waiver allows immigrants who are the spouse or child of a U.S. citizen or Lawful Permanent Resident to waive the applicable bar to admissibility if their departure from the U.S. would impose extreme hardship on their qualifying relative. Noncitizens who are not eligible to adjust their status in the U.S. must travel abroad to their home country and obtain an immigrant visa. Applying for this waiver in the U.S. before an immigrant departs for their immigrant visa interview in their home country protects them from the 3-10-year bar from returning to the U.S.
- What Qualifies as “Extreme Hardship:”
The Board of Immigration Appeals has defined “extreme hardship” to encompass various factors that a judge evaluates in determining whether the individual or their qualifying relative’s experience meets this standard. These factors include:
- Age, number, and immigration status of the individual’s children and their ability to speak the native language and to adjust to life in the country of return;
- Health condition of the individual’s children, spouse, or parents and the availability of any required medical treatment in the country to which the individual would be returned;
- Existence of other family members who are or will be legally residing in the United States;
- Financial impact of the individual’s departure;
- Impact of a disruption of educational opportunities;
- Psychological impact of the individual’s departure;
- Current political and economic conditions in the country to which the individual would be returned;
- Family and other ties to the country to which the individual would be returned;
- Contributions and ties to a community in the United States, including degree of integration into the society; and
- Immigration history.
- The Discretionary Nature of Relief:
After weighing these factors, a judge determines whether the individual would meet the “extreme hardship” standard, should they be either forced to separate from their family member and remain in the United States or should be forced to follow their family member to their country of origin while they wait out their bar of admissibility. This is a discretionary relief, and a judge weighs all relevant factors when determining whether to grant relief under INA Section 212(a)(9)(B(v). It’s important to note that one factor is not more persuasive than another, and that the judge will consider an immigrant’s situation as a whole.
- First Steps:
If you entered the U.S. without being admitted or paroled and you are the spouse or child of a U.S. Citizen or Lawful Permanent Resident, you may want to consider this option. If you want more information about Provisional Unlawful Presence Waiver, contact the attorneys Zambrano & Ruiz at 770-769-5820.
Attorney Shirley Zambrano
Founding Partner
