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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. Indeed, immigration law itself can be one of the biggest obstacles to getting on the right side of the law.

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 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 (There’s an odd exception to this rule for people in immigration court, but we won’t discuss that here.). 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. in order 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.

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.

In the past, applicants had to depart the United States before they could even apply for an unlawful presence waiver. This was a big risk, because there was no guarantee that the waiver would be approved, potentially leaving the applicant stuck outside the United States.

Further, it often took longer than a year for the government to adjudicate the waivers once the applicant had already departed. Meantime, applicants would be separated from their families, who would be suffering from the separation while waiting for the waiver to be adjudicated.

Not surprisingly, many made the rational decision to remain in the U.S. without status instead of completing their consular processing of their lawful residence status overseas, due to the lengthy separation and the risk of a denied waiver. Thus, immigration law stood in the way of people getting onto the right side of the law.

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 an important benefit meant to promote family unity and prevent immigration hopefuls from becoming trapped outside the U.S. with no sense of when they will be able to return. 

The easiest way to explain the purpose of the I-601A provisional waiver is through an example:

Let’s say Maria came to the U.S. seeking a better life, fleeing violence and unemployment in her Central American country. She crossed the southern border without documents.

After a couple of years, Maria meets Jose at her local church and the two eventually marry and start a family. Jose is a U.S. citizen and wants to petition for his wife to become a lawful resident. ​​

Due to her irregular entry, in this case Maria is not eligible to apply for her lawful residence status inside the United States; instead, she must apply at the consulate in her home country.

However, Maria has been accumulating unlawful presence in the United States since her arrival several years ago, so she will trigger the 10 year unlawful presence bar of inadmissibility upon her departure from the United States. 

Traditionally, while a fix in the form of the I-601 existed for Maria’s situation, it was a lengthy one: Maria would have to await an interview at the U.S. consulate in her home country after a spousal petition was approved, depart the United States, attend the consular interview and be found legally inadmissible, apply for the I-601 waiver and then wait for a year or more for adjudication of the waiver.

This process meant Maria was outside of the United States for at least a year, separated from her spouse and children in the United States.  

Introduction of the new I-601A stateside, or provisional, waiver now provides applicants with an appealing procedural alternative with the same ultimate result. With the I-601A, now Maria can apply for her unlawful presence waiver prior to departure from the United States, knowing that when she does depart, the waiver has already been approved.

In this new scenario, Maria is outside the United States for a matter of a few weeks, maximum, rather than for one year or more.

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 goes 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.

Get in touch with us today so we can discuss what your options are, and whether you or someone in your family needs the provisional I-601A process. 

Contact Pelton + Balducci today

Our 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.

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