I-601 and I-601A
WAIVERS OF
INADMISSIBILITY

In order to obtain U.S. permanent resident status, otherwise known as a green card, through adjustment of status or consular processing, you must be qualified and “admissible” to the United States. This means that you have not been convicted of particular crimes, immigration fraud or immigration status violations. If you have been found guilty of any of the aforementioned, you may be “inadmissible” to the United States, and therefore ineligible for a permanent resident status or to receive an immigrant visa.

If you’re inadmissible but you have a qualifying U.S. citizen (USC) or Lawful Permanent Resident (LPR) spouse, child or parent, you may be eligible to file an I-601 or I-601A applications to waive your inadmissibility, if you can prove that your absence from the U.S. would cause your family member extreme hardship. Applicants without qualifying relatives or who cannot prove extreme hardship may not be eligible for this waiver. Ultimately, permanent resident status could be denied to them. In this case, they should consult with an experienced immigration attorney to confirm whether or not they are eligible to file.

I-601, Application for Waiver of Grounds of Inadmissibility

I-601 applications are filed with and adjudicated by USCIS. The agency must balance the prior act or acts making the person inadmissible against the hardship the qualifying relative would suffer in their absence. The more severe the inadmissibility act or acts (e.g., a severe criminal conviction), the more extreme the hardship must be.

Once the waiver petition is successful, the immigrant’s application for immigration benefit (i.e. permanent resident status or immigrant visa) can be approved. If the individual is seeking to adjust their status in the U.S., the I-601 application may be filed concurrently with the I-485 adjustment of status application.

To find out whether you are eligible for this type of waiver, please call us and schedule to speak with one of our immigration experts.

What Is Extreme Hardship?

The factors that will amount to extreme hardship vary from case to case because every case is unique and each ground of inadmissibility is evaluated individually.

Generally, extreme hardship is hardship outside of the ordinary. This is hardship much greater than just being separated from your family member for a prolonged period of time. A debilitating medical condition that will require the applicant to constantly care for their qualifying relative may satisfy the requirement. In this instance, the U.S. citizen/LPR would indeed face extreme hardship if it can be established that the waiver applicant is his/her primary caretaker.

It is important to note that any hardship to the intending immigrant does not matter to the adjudicator at all, only hardship to the USC or LPR family member. In addition, hardship to children is also not taken into account in the consideration for a waiver. In certain cases, hardship to children can still be used in the waiver petition indirectly as a hardship to the qualifying parent.

In certain case, applicants will qualify for extreme hardship by a combination of smaller hardships that make one significant hardship (e.g. lesser medical conditions, educational hardships for the U.S. relative or children, severe financial hardships, family hardships, employment hardships, among others). Each hardship case must be evaluated very carefully in advance by a good immigration lawyer in order to determine what the chances of success are before filing the case.

I-601A, Application for Provision Unlawful Presence Waiver

Foreign nationals who are unlawfully present are normally ineligible to adjust their status in the U.S. and must return to their home country to obtain permanent residence through consular processing. Any foreign national who remained in the United States without valid status for more than a year (either by entering without a visa or overstaying longer than one year after visa expiration), face a 10-year bar from the U.S. upon leaving the country.

In the past, a foreign national who left the United States to consular process for permanent residence would be required to apply for an I-601 waiver based on unlawful presence. The applicant must then wait at least several months in their home country for a decision on the waiver.

In response to the long periods of separation and uncertainty suffered by American family members of pending immigrants, the Department of Homeland Security created a new waiver process – the I-601A provisional waiver. With the 601A, the applicant can go through the process in the U.S. before returning to their home country to attend their immigrant visa interview. This waiver applies to immediate relatives of USC’s only; and they must be inadmissible only because of unlawful presence in the United States. Individuals with additional grounds of inadmissibility are not eligible for this waiver and must follow the procedures for the regular I-601 described above.

Once the provisional waiver is granted, an applicant must make an application for an immigrant visa and later appear for an interview at an American consulate abroad to complete the process for permanent residence. In these cases, wait time in the home country is significantly shorter than under the regular I-601 process – usually only a few weeks – so separation from family members may be minimal. The risk involved in the 601A is also significantly lower, because the applicant will know ahead of departing the U.S. whether their waiver is approved: in the case that it is denied, they can choose not to leave the U.S. and trigger the 10-year bar.

Requirements for I-601A

• You are physically present in the United States.
• You are over the age of 17.
• You have an approved I-130 filed for you as an immediate relative of a U.S. citizen (most commonly spouses).
• You have an immigrant visa case pending with the Department of State and you have paid the immigrant visa fees.
• You are inadmissible only because you have remained in the United States without legal status for more than 180 days without departing the United States – you either arrived without a visa, for example, sneaked through the border more than 6 months ago, or you arrived with a visa but your authorized stay expired more than 6 months ago.
• Your qualifying USC spouse or parent would suffer extreme hardship if the I-601A Application is not granted (LPR family members do not qualify under the I-601A procedures).

Filing for Your I-601 or I-601A

To maximize chances of approval for the waiver, applicants must submit extensive documentation of the hardship to be suffered by their qualifying American relatives. Contact an immigration attorney with a proven track record handing I-601 and I-601A waivers. The quality of the waiver application has a direct impact on the decision in your case. Inadequately prepared cases with insufficient evidence will likely be denied without a chance for appeal. At Weinstock Immigration Lawyers, our attorneys have successfully obtained I-601 and I-601A waiver approvals in hundreds of cases. Call us today if you have any questions about the waiver process, or if you’re ready to proceed with an application! We will determine the best strategy for your case and help you avoid lengthy separation from your family.