If you entered the U.S. without inspection or overstayed a visa, you may have accumulated unlawful presence, which can trigger a 3- or 10-year bar from returning to the U.S. once you leave. The I-601A provisional waiver allows certain applicants to request forgiveness for unlawful presence before leaving the United States for consular processing. This process is designed to keep families together by drastically reducing the time applicants must spend outside the U.S. Determining whether you qualify requires careful legal analysis, as the waiver only applies to specific situations and relationships.
–
One area in which immigration law is often misunderstood is the difficulty in obtaining lawful immigration status when one is already inside the United States, but without lawful status.
For many, there is no path. And even for those who have a path to status, there can be serious obstacles. Immigration law itself can be one of the biggest obstacles to getting on the right side of the law. That’s where the immigration attorneys at Pelton + Balducci, led by Marco Balducci and Carol Pelton, can help.
What is Unlawful Presence in New Orleans?
Consider “unlawful presence.”
“Unlawful presence” is a concept with a very specific meaning in immigration law. As one can readily guess, it is time spent in the United States without a lawful immigration status. However, it does not trigger a penalty until after an individual departs the United States.
- If you have over 180 days but less than one year of unlawful presence and depart the U.S., you’ll be barred from re-entry to the U.S. for three years.
- If you have one year or more of unlawful presence and depart the U.S., you won’t be able to return for 10 years!
This penalty creates huge problems for many family members of U.S. citizens and permanent residents who would otherwise be eligible to apply for permanent residence status based on their family relationships, but are ineligible due to the accumulation of unlawful presence.
Many such people are required to leave the U.S. to process their applications for permanent residence at the U.S. embassy or consulate abroad.
However, if they leave with more than 180 days of unlawful presence, they will be hit with a significant penalty, known as the 3- or 10-year bar, that will keep them apart from their families for years.
What Can Be Done About Unlawful Presence Penalties?
Thankfully, a waiver is available to overcome the unlawful presence penalties. To prevail on such a waiver, the applicant must show that their U.S. citizen or permanent resident spouse or parent would suffer extreme hardship due to their absence and inability to return to the United States.
Previously, applicants had to leave the U.S. before applying for a waiver, risking long separations and possible denial while waiting abroad for a year or more. Because of this uncertainty, many people remained in the U.S. without status rather than face prolonged family separation.
The Obama Administration took an important step to help families in this impossible situation through the creation of the I-601A (“provisional or “stateside”) waiver.
Read on to learn more about this provisional waiver, how it can help, and whether you could benefit from such a process provided by our team of New Orleans immigration attorneys at Pelton + Balducci.
What is the I-601A Provisional Waiver?
The I-601A provisional waiver is designed to promote family unity by allowing certain immigrants to request forgiveness for unlawful presence before leaving the United States for consular processing. This helps prevent long, uncertain separations from family members while waiting for a decision abroad.
For example, someone who entered the U.S. without inspection, later married a U.S. citizen, and accrued unlawful presence may be required to apply for a green card through a U.S. consulate overseas. Without a waiver, leaving the U.S. could trigger a 10-year bar, even though the person is otherwise eligible for permanent residence through their family relationship.
Before the I-601A existed, applicants had to leave the U.S., attend their consular interview, apply for a waiver from abroad, and wait a year or more for a decision. The I-601A changes this by allowing the waiver to be approved in advance, reducing time outside the U.S. from many months or years to, in most cases, just a few weeks.
Who can apply for Form I-601A?
The “provisional” or “stateside” waiver is specifically designed for inadmissible immigrants who have accumulated more than 180 days of unlawful presence time in the U.S.
Green card applicants may be found inadmissible for a variety of other reasons, but the provisional Form I-601A only waives the unlawful presence ground and cannot be used to waive other grounds of inadmissibility, such as criminal or fraud grounds.
Form I-601A is for the following people applying for immigrant visa status:
- People eligible for an immigrant visa (i.e., permanent residence) to the U.S. via an approved immigrant visa petition, generally filed by a family member;
- People physically present in the United States at the time of submitting the Form I-601A;
- People over the age of 17;
- Relatives of U.S. citizens and permanent residents (specifically, applicants must have U.S. citizen or lawful permanent spouses or parents. Unfortunately, U.S. citizen or permanent resident children are not considered “qualifying relatives” for purposes of I-601A eligibility); and
- Applicants must demonstrate that qualifying U.S. citizen or permanent resident family members (spouse or parent(s)) will suffer “extreme hardship” if the waiver is not granted, which can include financial, medical, psychological, as well as other types of hardship such as the country conditions, particularly war and natural disaster, in the home country.
Since the hardship has to be “extreme,” these waiver applications must be thoroughly prepared and documented.
How Do I Know If I Need This Form to Immigrate to the U.S.?
There are many complexities in the legal system and bureaucracy that go along with applying for immigration status in the U.S. The system is flawed and can be unfair.
At Pelton + Balducci, we believe that everyone deserves the chance to live their American Dream. That’s why we work with our clients to determine the best steps for them and their families to take on their path towards lawful immigration status.
Contact Pelton + Balducci Today
Our immigration attorneys have over 30+ years of combined experience specifically in immigration law, working at both the federal and appellate level, and at trial. We have helped hundreds of clients successfully make America their home.
Get in touch with us today so we can discuss what your options are, and to determine whether you or someone in your family needs the provisional I-601A process.
Frequently Asked Questions:
1.What is unlawful presence in immigration law?
Unlawful presence is time spent in the United States without a valid immigration status. It becomes legally significant once you depart the U.S., as it can trigger re-entry bars of three or ten years depending on how much unlawful presence was accrued.
2.What is the 3-year or 10-year bar?
If you leave the U.S. after more than 180 days but less than one year of unlawful presence, you may face a three-year bar from returning. If you accrued one year or more, you may face a ten-year bar.
3.What does the I-601A provisional waiver do?
The I-601A allows eligible applicants to request a waiver of the unlawful presence bar before leaving the U.S. for their consular interview, significantly reducing the time they are separated from their families.
4.Who qualifies for the I-601A waiver?
Generally, applicants must be physically present in the U.S., have an approved immigrant visa petition, be over 17, and show that their U.S. citizen or permanent resident spouse or parent would suffer extreme hardship if the waiver is denied.
5.Can the I-601A waive other immigration issues?
No. The I-601A waiver only applies to unlawful presence. It does not forgive other grounds of inadmissibility such as criminal history, fraud, or prior immigration violations.
6.How do I know if the I-601A process is right for me?
Every case is different. Factors like how you entered the U.S., how long you’ve been here, your family relationships, and your immigration history all matter. Speaking with an immigration attorney can help determine whether the I-601A is appropriate or if another path is available.
