Form I-601A, Application for Provisional Unlawful Presence Waiver

Form I-601A, Application for Provisional Unlawful Presence Waiver

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What is Form I-601A?

Form I-601A, Application for Provisional Unlawful Presence Waiver, is a form by certain individuals who are eligible for immigrant visas but may be subject to the three- or ten-year bar on re-entry due to accruing unlawful presence in the U.S.

Unlawful presence refers to the period that an individual spends in the U.S. without being in a lawful immigration status. 

The three- or ten-year bars on re-entry come into play when someone departs the U.S. after accruing a certain amount of unlawful presence and then seeks to re-enter legally. The bars can pose obstacles to obtaining an immigrant visa.

The purpose of Form I-601A is to request a provisional waiver of the unlawful presence ground of inadmissibility before the individual departs the U.S. to attend a visa interview at a U.S. consulate or embassy abroad. 

If approved, the provisional waiver aims to reduce the time the applicant is separated from their family.

Who can file Form I-601A?

Form I-601A, Application for Provisional Unlawful Presence Waiver, can be filed by the applicants who meet the following criteria:

  • Physical presence in the U.S.: Applicant must be physically present in the U.S. when Form I-601A is filed
  • Age: Applicant must be over 17 years of age at the time of Form I-601A filing
  • Immigrant visa eligibility: Applicant is eligible for an immigrant visa in the following categories:
    • Applicant is the principal beneficiary of an approved Form I-130, Form I-140, or Form I-360;
    • Applicant is the spouse or child of a principal beneficiary of an approved immigrant visa petition;
    • Applicant has been selected in the Diversity Visa (DV) lottery; or
    • Applicant is the spouse or child of a Diversity Visa (DV) lottery selectee
  • Case is pending with the U.S. Department of State: The applicant must have paid the immigrant visa fees and the case is pending with the U.S. Department of State (National Visa Center)
  • Accrual of Unlawful Presence: The applicant must have accrued a certain period of unlawful presence in the U.S.:
    • More than 180 days, but less than 1 year during a single stay; or
    • One year or more during a single stay.
  • Extreme Hardship: The applicant must demonstrate that their U.S. citizen or permanent resident spouse or parent would experience “extreme hardship” if the applicant is not issued an immigrant visa.

Who cannot file Form I-601A?

The following individuals cannot file Form I-601A:

  • You are not physically present in the U.S.;
  • You are under 17 years of age;
  • You have a pending Form I-485 application with USCIS;
  • You are in removal (deportation proceedings). Exception: if your removal proceedings were administratively closed and have not been placed back on immigration court calendar;
  • You have a final order of removal, exclusion or deportation. Exception: you have an approved Form I-212, Application for Permission to Reapply for Admission into the U.S. after Deportation or Removal
  • You were served Form I-871, Notice of Intent/Decision to Reinstate Prior Order
  • You are subject to an unexpired grant of voluntary departure.

Who can become a “qualifying relative” for Form I-601A purposes?

Your spouse or your parent who is a U.S. citizen or permanent resident can become a qualifying relative for your Form I-601A waiver application.

The qualifying relative does not need to be the same person who filed your Form I-130 petition.

What is “Extreme Hardship” in Form I-601A applications?

The basis for filing Form I-601A waiver is to seek relief from the unlawful presence ground of inadmissibility due to the presence of a “qualifying relative” who is a U.S. citizen or lawful permanent resident spouse or parent, and the denial of admission would result in “extreme hardship” to that qualifying relative.

Extreme hardship is a legal standard that requires more than the normal hardship that might be expected from the denial of an immigrant visa application.

It involves showing that the denial would cause a level of hardship to the qualifying relative that goes beyond the typical or expected difficulties associated with family separation.

Factors that may be considered by USCIS in demonstrating extreme hardship can include, but are not limited to:

Factors

Considerations

Family Ties and Impact
  • Qualifying relative’s ties to family members living in the U.S., including age, status, and length of residence of any children.
  • Responsibility for the care of any family members in the U.S., particularly children, elderly adults, and disabled adults.
  • The qualifying relative’s ties, including family ties, to the country of relocation, if any.
  • Nature of relationship between the applicant and the qualifying relative, including any facts about the particular relationship that would either aggravate or lessen the hardship resulting from separation.
  • Qualifying relative’s age.
  • Length of qualifying relative’s residence in the U.S.
  • Length of qualifying relative’s prior residence in the country of relocation, if any.
  • Prior or current military service of qualifying relative.
  • Impact on the cognitive, social, or emotional well-being of a qualifying relative who is left to replace the applicant as caregiver for someone else, or impact on the qualifying relative (for example, child or parent) for whom such care is required.
Social and Cultural Impact
  • Loss of access to the U.S. courts and the criminal justice system, including the loss of opportunity to request or provide testimony in criminal investigations or prosecutions; to participate in proceedings to enforce labor, employment, or civil rights laws; to participate in family law proceedings, victim’s compensation proceedings, or other civil proceedings; or to obtain court orders regarding protection, child support, maintenance, child custody, or visitation.
  • Fear of persecution or societal discrimination.
  • Prior grant of U nonimmigrant status.
  • Existence of laws and social practices in the country of relocation that would punish the qualifying relative because he or she has been in the U.S. or is perceived to have Western values.
  • Access or lack of access to social institutions and structures (official and unofficial) for support, guidance, or protection.
  • Social ostracism or stigma based on characteristics such as gender, gender identity, sexual orientation, religion, race, national origin, ethnicity, citizenship, age, political opinion, marital status, or disability.
  • Qualifying relative’s community ties in the U.S. and in the country of relocation.
  • Extent to which the qualifying relative has integrated into U.S. culture, including language, skills, and acculturation.
  • Extent to which the qualifying relative would have difficulty integrating into the country of relocation, including understanding and adopting social norms and established customs, including gender roles and ethical or moral codes.
  • Difficulty and expense of travel/communication to maintain ties between qualifying relative and applicant, if the qualifying relative does not relocate.
  • Qualifying relative’s present inability to communicate in the language of the country of relocation, as well as the time and difficulty that learning that language would entail.
  • Availability and quality of educational opportunities for qualifying relative (and children, if any) in the country of relocation.
  • Availability and quality of job training, including technical or vocational opportunities, for qualifying relative (and children, if any) in the country of relocation.
Economic Impact
  • Economic impact of applicant’s departure on the qualifying relative, including the applicant’s or qualifying relative’s ability to obtain employment in the country of relocation.
  • Economic impact resulting from the sale of a home, business, or other asset.
  • Economic impact resulting from the termination of a professional practice.
  • Decline in the standard of living, including due to significant unemployment, underemployment, or other lack of economic opportunity in the country of relocation.
  • Ability to recoup losses, or repay student loan debt.
  • Cost of extraordinary needs, such as special education or training for children.
  • Cost of care for family members, including children and elderly, sick, or disabled parents.
Health Conditions
?and Care
  • Health conditions and the availability and quality of any required medical treatment in the country to which the applicant would be returned, including length and cost of treatment.
  • Psychological impact on the qualifying relative due to either separation from the applicant or departure from the U.S., including separation from other family members living in the U.S.
  • Psychological impact on the qualifying relative due to the suffering of the applicant.
  • Prior trauma suffered by the qualifying relative that may aggravate the psychological impact of separation or relocation, including trauma evidenced by prior grants of asylum, refugee status, or other forms of humanitarian protection.
Country Conditions
  • Conditions in the country of relocation, including civil unrest or generalized levels of violence, current U.S. military operations in the country, active U.S. economic sanctions against the country, ability of country to address significant crime, environmental catastrophes like flooding or earthquakes, and other socio-economic or political conditions that jeopardize safe repatriation or lead to reasonable fear of physical harm.
  • Temporary Protected Status (TPS) designation.
  • Danger Pay for U.S. government workers stationed in the country of nationality.
  • Withdrawal of Peace Corps from the country of nationality for security reasons.
  • U.S. Department of State Travel Warnings or Alerts, whether or not they constitute a particularly significant factor
Particularly Significant Factors
  • Qualifying Relative Previously Granted Iraqi or Afghan Special Immigrant Status, T Nonimmigrant Status, or Asylum or Refugee Status
  • Qualifying Relative or Related Family Member’s Disability
  • Qualifying Relative’s Military Service
  • U.S. Department of State Travel Warnings
  • Substantial Displacement of Care of Applicant’s Children

When Form I-601A must be filed?

Form I-601A must be filed with USCIS while the applicant is physically present in the U.S. before he/she leaves the U.S. to appear at a U.S. Embassy or Consulate for an immigrant visa interview.

What is the difference between Form I-601 and Form I-601A?

The key differences between Form I-601 and Form I-601A include:

Purpose:

  • Form I-601: This form is the Application for Waiver of Grounds of Inadmissibility. It is used to request a waiver for various grounds of inadmissibility that may prevent an individual from being eligible for a U.S. visa or green card. Grounds of inadmissibility can include issues such as fraud and misrepresentation, certain criminal offenses, health-related concerns, and more.
  • Form I-601A: This form is the Application for Provisional Unlawful Presence Waiver. It specifically addresses the ground of inadmissibility related to unlawful presence in the U.S. It allows certain individuals to request a provisional waiver before departing the U.S. for consular processing of an immigrant visa.

Timing:

  • Form I-601: Generally, Form I-601 is filed after an individual attends a U.S. consular interview abroad and is found inadmissible. It is a waiver application filed in response to a specific finding of inadmissibility.
  • Form I-601A: This form is filed before the individual departs the U.S. for consular processing. It is a provisional waiver, meaning that if approved, it allows the individual to address the unlawful presence ground of inadmissibility before leaving the U.S., reducing the time of separation from family.

Eligibility:

  • Form I-601: Individuals facing various grounds of inadmissibility, not limited to unlawful presence, may be eligible to file Form I-601. Eligibility for filing Form I-601 is discussed in our guide.
  • Form I-601A: This form is specifically designed for individuals who are eligible for an immigrant visa, have accrued unlawful presence in the U.S., and are physically present in the U.S. at the time of filing.

How to prepare and file Form I-601A

Preparing and filing Form I-601A is a complex legal process, and it’s highly recommended to seek the assistance of an experienced immigration attorney to ensure that the application meets the “extreme hardship” standard.

Here is a general overview of the Form I-601A submission process:

Step 1. Eligibility Determination:

  • Determine if you are eligible for a waiver based on the applicable legal criteria – you must be over 17 years of age, physically present in the U.S. and have an approved immigrant petition

Step 2. Complete the Form:

  • Download the latest edition of Form I-601A from USCIS official website
  • Sign and date the form in ink. USCIS does not accept computer-generated or stamped signatures

Step 3. Gather Supporting Documents:

  • Collect all necessary supporting documents, such as immigrant visa approval notice, proof of immigrant visa application fees payment, evidence of the qualifying relationship, evidence of extreme hardship, and any other supporting documentation relevant to your case
  • Documents in a foreign language must be translated to English

Step 4. Filing Fee:

  • Check the current filing fee for Form I-601A 
  • Include the correct filing fee with your application. Payment can be made by personal check, money order, cashier’s check or credit card (Form G-1450)

Step 5. Mail the Application:

  • You must be physically present in the U.S. when you sign and submit the Form I-601A application to USCIS
  • Mail the completed Form I-601A and supporting documents to the correct filing address
  • Make a copy of the completed application for your records
  • It’s advisable to mail the application via express mail with a tracking number

Step 6. Await USCIS Processing:

  • Receipt notices are typically mailed to applicants within 2-3 weeks after the submission date
  • USCIS will review the application and may request additional evidence (Request for Evidence)
  • Applicants might be required to attend a biometrics appointment

Step 7. Decision and Next Steps:

  • It’s not recommended that you travel abroad before your Form I-601A is approved.
  • USCIS will notify you of the decision. If the waiver is approved, you can proceed with your immigration application at the U.S. Embassy or Consulate abroad
  • If the waiver is denied, you can file a new Form I-601A application with USCIS.

Form I-601A filing fee

The filing fee for Form I-601A, Application for Provisional Unlawful Presence Waiver depends on the applicant’s age:

  • If under 79 years of age: $630 + $85 biometric fee. Total: $715
  • If over 79 years of age: $630

Acceptable forms of payment:

  • Money order
  • Personal check
  • Cashier’s check, or
  • Pay by credit card using Form G-1450

If you pay by check, it must be payable to the U.S. Department of Homeland Security.

USCIS fees are subject to change, so check the most current Form I-601A filing on USCIS website.

Form I-601A checklist of required documents

The checklist of required documents you must submit with Form I-601A:

Evidence

Examples of acceptable documents

Completed and signed Form I-601A
  • Download the most recent edition of Form I-601 on USCIS website
  • Answer all questions
  • Sign and date the form
  • Unsigned, undated or outdated editions of Form I-601A will be rejected by USCIS
  • Filled out Form G-1145 (if you want USCIS to send you a text message or email with the Form I-601A receipt number)
Filing fee
  • $715 if applicant is under 79 years of age, or
  • $630 if applicant is over 79 years of age
Evidence of Eligibility for an Immigrant Visa
  • Immigrant petition approval notice (Form I-130 or Form I-149 approval notice)
  • Immigrant visa processing fee receipt (with the “Paid” status)
  • Electronic Diversity Visa Entrant Status Check printout (only if you were selected in Diversity Visa Lottery);
  • EOIR Administrative Closure Order (only if your removal proceedings were administratively closed)
  • Form I-212 approval notice (only if applicable)
Evidence of relationship to the qualifying relative
  • Marriage certificate
  • Birth certificate
Evidence of the qualifying relative’s immigration status If the qualifying relative is a U.S. citizen (at least one of the following documents):

  • U.S. birth certificate (if born in the U.S.)
  • Unexpired U.S. passport (biographic page)
  • Naturalization certificate
  • Citizenship certificate
  • Consular Report of Birth Abroad (only if born abroad)

If the qualifying relative is a permanent resident:

  • Green card (front and back)
  • Unexpired immigrant visa stamp (that serves as I-551 for 1 year)
Evidence of extreme hardship  Proof that denial of your immigrant visa will result in extreme hardship to your U.S. citizen or permanent resident spouse or parent:

  • Medical records
  • Psychological evaluations
  • Financial records 
  • Country conditions reports
  • Affidavits from friends, family members, or community members attesting to the impact of your absence on the qualifying relative
  • Qualifying relative’s U.S. military records (if applicable) – if the qualifying relative ever served or currently serves in the U.S. military
Evidence your case warrants a favorable exercise of discretion
  • Affidavits from friends, family members, or community members attesting to your good moral character and positive contributions to the community
English translations
  • If any supporting documents are in a foreign language, provide certified English translations.
  • Attach the photocopy of the original document in foreign language

Form I-601A processing time

The average processing time for Form I-601A is approximately 44 months according to the USCIS website.

Processing times for Form I-601A vary depending on several factors, including the workload at the specific U.S. USCIS service center processing the application and the complexity of the case. 

To check the most current processing times for Form I-601A:

  • Visit the USCIS website at https://egov.uscis.gov/processing-times
  • Choose “Form-601A” 

Keep in mind that processing times are general estimates, and individual cases may take less or more time to complete.

Additionally, USCIS may issue Requests for Evidence (RFEs) during the processing of your application, which can add to the overall processing time. 

It’s crucial to respond promptly and thoroughly if you receive an RFE to avoid delays.

If your case is outside the normal processing time, you place an Outside Normal Processing Time e-Request or request assistance from your local congressman’s office.

Related Links:

How to Prove Extreme Hardship for a Waiver, Form I-601

Form I-601, Application for Waiver of Grounds of Inadmissibility