Jesse J. Bañuelos, a Los Angeles Immigration Attorney

THE NEW PROVISIONAL I-601A UNLAWFUL PRESENCE WAIVER

Under immigration law, all foreigners who live in the US, who wish to immigrate to the US through a family member, and who are not eligible for adjustment of status in the US will have to travel outside the US to obtain an immigrant visa which will allow them to return to the US as legal permanent residents. Furthermore, all such foreigners who have lived illegally in the US for more than 180 days after April 1, 1997, have to obtain a waiver [forgiveness] of inadmissibility to overcome the immigration laws’ barrier against unlawful presence. Before March 4, 2013, all such foreigners who were the spouses or children of US citizens, or green card holders, had to apply for such a waiver outside the US after their immigrant visa interview in their country’s American Consulate. This is known as the I-601 waiver. Then, they had to wait outside the US until a decision was made on their waiver application. Sometimes, the waiting time was 18 months, or more. Since March 4, 2013, all such foreigners who are the spouses, or children of US citizens can apply for a waiver of unlawful presence in the US before leaving for the immigrant visa interview at the American Consulate in their country. This is known as the I-601A waiver. This new process has reduced the time that the immigrant visa applicants will have to wait outside the US. Under this new process, the time that the applicant will have to spend outside the US will usually not 10 days.

REQUIREMENTS OF THIS NEW PROVISIONAL I-601A WAIVER

To be eligible for this new provisional waiver, the applicant must meet the following requirements:

1. be at least 17 years old;

2. have an approved 1-130 family visa petition that was filed on behalf of the applicant by one of the applicant’s immediate relatives  [NOTE: under immigration law, a spouse of a US citizen, a child (under 21 years of age and unmarried) of a US citizen, and parents of a US citizen child 21 years of age or older are considered immediate relatives], or an I-360 petition for a widow(er), or special immigrant;

3. have a pending immigrant visa case for the approved immediate relative petition;

4. be able to demonstrate that denial of the applicant’s waiver petition would cause extreme hardship to his/her US citizen spouse or parent;

ANNOUNCEMENT: On Aug. 29, 2016, there will be an expansion of the eligibility for the I-601A waiver. After that date, the USCIS will take into account the hardship of an applicant’s spouse and/or parents, even if they are only green card holders. 

5. be physically present in the US to file the petition for that waiver, and to submit his/her biometrics; and

6. if the applicant is in deportation/removal proceedings, that process must be administratively closed by the immigration court before that petition can be filed.

A foreigner is not eligible for this waiver if the following applies to him:

1. besides unlawful presence [for having lived illegally in the US. for more than 180 days after April 1, 1997], he is subject to other grounds of inadmissibility; (such as a deportation, some violation of the immigration laws, such as using false documents to enter the US, and/or certain criminal convictions, etc.); and

2. his immigrant visa interview was scheduled before January 3, 2013.

If the USCIS approves this waiver, it will only take effect after:

1. the applicant appears for his immigrant visa interview at the American consulate in his country of origin; and

2. a consular officer determines that unlawful presence is the only ground that makes the applicant inadmissible to the US. [NOTE: the applicant should not depart the US until the American Consulate notifies him that he is scheduled for an immigrant visa interview at the consulate].

EXAMPLE #1

Juan, a 21 year-old US citizen, wants to petition for his mother, Lupe, who came to the US in 2001 by crossing the border inside the trunk of a car.
QUESTION: Can Juan petition for his Mom?
ANSWER: Yes. Like all US citizens over the age of 21, Juan can petition for any of his parents.
QUESTION: Is Lupe eligible for an I-601A waiver?
ANSWER: No. Since she entered the US illegally, the only way for her to get legal permanent resident status in the US through her son would be by applying for an immigrant visa which would require that she go through consular processing. Moreover, since she has lived in the US illegally for more than 180 days, before the Consulate could issue her a visa, she would need a waiver [forgiveness] of her unlawful presence. However, because Lupe is neither the spouse nor the child of a US citizen, she is not eligible for any waiver–either I-601 or I-601A–of unlawful presence. Therefore, if she were to go forward with consular processing without that waiver, her visa would be denied by the Consulate, and she would be left abroad with no legal way to return to the US for at least 10 years.

EXAMPLE #2
Juan, a US citizen, wants to petition for Lupe, his wife, who came to the US in 2001 by crossing the border using a false green card.
QUESTION: Is Lupe eligible for an I-601A waiver?
ANSWER: No. The only grounds of inadmissibility under the immigration laws that this waiver will cure is unlawful presence in the US for more than 180 days after April 1, 1997. This waiver would not cure Lupe’s use of a false green card to enter the US, a fraud under immigration law, and which is another ground of inadmissibility.
QUESTION: Is Lupe eligible for any other kind of waiver?
ANSWER: Yes. If Lupe wants to go forward with a consular immigrant visa petition through her husband, she would have to apply for an I-601 waiver of unlawful presence, and an I-601 waiver for using a false green card. The problem is that although the petition for a waiver of the fraud must be filed in the US, since Lupe doesn’t qualify for the I-601A waiver, her unlawful presence waiver petition would have to be filed outside the US, but only after Lupe has had her visa interview at the Consulate. Then, she would have to remain outside the US while that petition is pending, which could be as long as 18 months, or more.

EXAMPLE #3
Juan, a US citizen, wants to petition for Lupe, his wife, who came to the US in 2001 by crossing the border inside the trunk of a car. In 2011, Lupe was convicted of a felony for receiving stolen merchandise, for which she was sentenced to nine months in jail.
QUESTION: Is Lupe eligible for an I-601A waiver?
ANSWER: No. The only grounds of inadmissibility under immigration law that this waiver will cure is unlawful presence in the US for more than 180 days after April 1, 1997. This waiver would not cure Lupe’s felony conviction because it is a crime involving moral turpitude, which is another ground of inadmissibility.
QUESTION: Is Lupe eligible for any other kind of waiver?
ANSWER: Yes. If Lupe wants to go forward with a consular immigrant visa petition through her husband, she would have to apply for an I-601 waiver of unlawful presence, and an I-601 waiver for her felony conviction. The problem is that although the petition for a waiver for the felony conviction must be filed in the US, since Lupe doesn’t qualify for the I-601A waiver, her unlawful presence waiver petition would have to be filed outside the US, but only after Lupe has had her visa interview at the Consulate. Then, she would have to remain outside the US while that petition is pending, which could be as long as 18 months, or more.

EXAMPLE 4

Juan, a 21-year old US citizen, wants to petition for Lupe, his Mom, who came to the US in 2001, by crossing the border inside the trunk of a car. Maria, Lupe’s Mom, has a green card, and lives with Juan and Lupe.

QUESTION: Is Lupe eligible for an I-601A waiver?

ANSWER: Not now. But she will be after August 29, 2016, when there will be a change in the immigration laws. After that date, Lupe will be eligible for such a waiver because the USCIS will begin to take into account the suffering of an applicant’s spouse/parent even if they are only green card holders. In this case in particular, after that date, Lupe would be able to base her I-601A waiver petition on her Mom Maria’s suffering, even though Maria is only a green card holder.

WARNING: I-601A waiver applicants who have had run-ins with the law/the INS/DHS may be placed in removal proceedings. Because those proceedings could end with the issuance of an expulsion order against the applicant which could result in permanent banishment from the US, if you think that you qualify for this waiver, and you wish to apply for it but you have had run-ins with the law/the INS/the DHS, before you apply, it’s extremely important that you consult with an experienced immigration attorney, such as Mr. Bañuelos. Because he is hardworking and tenacious, Mr. Bañuelos has been successfully resolving difficult immigration problems, and has been winning difficult deportation and removal cases for over 20 years.