Understanding the I-601A - Unlawful Presence Waiver

A common scenario among our clients is that the client has an immediate relative (spouse, parent, child under the age of 21) who has or who can petition for them with Form I-130 (explained in a previous blog post), but the client entered the U.S. without a visa or inspection. As immigration laws exist currently, a person who has entered the U.S. without a visa or inspection cannot process their residency (green card), which would normally be done with Form I-485, while in the U.S., because they were not originally inspected and admitted (there are some exceptions). The person who is applying for residency must do so from outside the U.S. through “consular processing.”

However, those who have entered the U.S. without a visa or inspection face a punishment of a 3 or 10 year ban on being admitted back to the U.S. because of their unlawful presence. Thus, a person who entered without a visa or inspection may have to leave to do consular processing, but then may not be allowed back in because of their unlawful presence. One solution to this problem is a waiver.

Specifically, an I-601A waiver, “waives” the requirement that the person be prohibited from being admitted to the U.S. for 3 or 10 years. Basically, it forgives a person’s presence in the U.S. without a visa or inspection. Though the person still has to leave the U.S. for consular processing, the time outside the U.S. is limited to 2-3 weeks for processing and an interview and a decision on the I-601A waiver is made before the person ever leaves the U.S.

Generally, to qualify for an I-601A waiver, the applicant must:

• Be at least 17 years old;
• Be physically present in the U.S.;
• Be the immediate relative (spouse, parent, child under the age of 21) of a U.S. citizen;
• Have an approved I-130;
• Be able to demonstrate that your U.S. Citizen spouse or parent will suffer extreme hardship if the waiver is not granted, such as:
  • Health issues;
  • Financial issues;
  • Emotional / psychological issues;
  • Educational opportunities;
• Not be subject to any other grounds of inadmissibility (prior deportations, multiple entries, criminal history etc.)

Unfortunately, this waiver cannot be based on U.S. citizen children, it must be based on a USC spouse or parent only. As always, circumstances for specific cases may be different and require a thorough consultation with an immigration attorney.

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L.I.H. Law is a trusted immigration law firm with our office conveniently located in Seattle, near the Seattle Space Needle (2nd Ave and Denny Way).

Our well-respected attorneys exclusively practice immigration law, covering diverse topics: asylum, deferred action for childhood arrivals (DACA), detention cases, fiancé visas (K-1 visas), green cards, immigration status for victims of domestic violence or other crimes, naturalization applications, and much more.

The immigration attorneys and professional staff at L.I.H. Law are dedicated to providing the right solutions to meet our clients’ immigration needs.  Our entire staff is fluent in Spanish and has served clientele from around the world.

Supporting our local immigration community is important to us. Our immigration lawyers and staff are active in volunteering for various community events and organizations, and conducting pro-bono work.