I-601 & I-601A PROVISIONAL WAIVER LAWYER
Unlawful Presence Bars & Waivers
In 1996, the Illegal Immigrant Reform and Responsibility Act established bars set for a certain period, whereby an individual residing in the United States illegally who left the country would be barred from re-entering for three years, ten years, or permanently. The act is meant to punish individuals for staying in the United States illegally and protect national security to some degree. Still, there are many instances where this bar is unrealistic and would negatively affect the lives of those involved for no just reason. For these cases, waivers may be available.
Unlawful presence waivers make it possible to remain in the U.S. during the green card application process, even if you were here unlawfully or overstayed your visa. In a typical process, undocumented immigrants are forced to leave the country before applying for permanent residency. Many of them are barred from re-entry for years as a penalty for their breach of immigration law. However, under certain circumstances, the USCIS will waive their right to make you leave during the green card process—allowing you to stay home, at your job, or with your family.
How the Bar Is Determined
The length of the bar is determined by how long the individual was in the U.S. illegally before departing. This unlawful period starts when a temporary visa expires or, if entry was illegal in the first place, right then.
The differences between the 3-year, 10-year, and permanent ban are as follows:
- 3-year bar: Given to those in the United States illegally more than 6 months but less than 12
- 10-year bar: Given to those in the United States illegally for 12 months or longer
- Permanent bar: Unlike the previous two, these cannot be waived once they are given
This bar starts the moment that the illegal immigrant leaves the country. Often, they leave the United States to travel to a consulate or embassy to establish U.S. citizenship, but the bar can begin anyway upon the moment of that departure. This determination can be unfair and unwarranted.
What Is a Waiver of Illegal Presence & Am I Eligible?
The provisional waiver is a type of pardon available for certain undocumented immigrants who are parents or spouses of lawful permanent residents or U.S. citizens. Specifically, the waiver applies to those residing in the U.S. for several years after entry without inspection. Based on current laws, undocumented individuals who entered the U.S. without inspections must travel to a U.S. consulate abroad to receive their green card. Their undocumented entry or violation of status prohibits adjustment of status from within the US.
Before these changes, if an undocumented individual left the U.S. for the consular process, they would be automatically subject to the 3- and 10-year bars and would be ineligible to return to the U.S unless they applied for and were granted an I-601 waiver at the consulate abroad. The new regulations allow these family members to remain in the U.S. and apply for the pardon of illegal presence from within the U.S. before leaving. Once approved, they may leave to attend a consular interview and re-enter without being subject to the bars and long wait times. Note the pardon will only cure illegal entry. If there is another ground of inadmissibility, such as a criminal conviction, fraud, or prior orders of removal, then re-entry will be delayed or perhaps denied.
Am I Eligible for the I-601A Waiver?
To qualify for either of the waivers, the applicant must establish that their U.S. citizen or lawful permanent resident spouse or parent would experience “extreme hardship” if the applicant was not allowed to return to the U.S. after a trip abroad. Note: children are not relatives for the waiver. Eligibility for the program is limited to people that meet specific criteria:
- Present for Application Submission & Status Adjustment Interview: The person applying for the waiver is present in the USA at the time the application is submitted and will remain present in the US at least until the interview is scheduled by consular staff to adjust status.
- Favorable History: Unlawful presence in the country is the only ground of inadmissibility that the waiver is designed to pardon. If there is some other unfavorable history, the waiver may be denied.
- Beneficiary of an Approved I-130: The applicant must be the beneficiary of an approved I-130 filed by a family member (such as a husband, wife, parent, child over 21, or sibling) who is a U.S. citizen or lawful permanent resident. The qualifying relative is also required to demonstrate “extreme hardship” to qualify for the waiver.
- Beneficiary of an Approved I-140: The applicant must be the beneficiary of an approved I-140 petition filed by an employer.
- No Final Order of Deportation Present: In addition, the applicant must not have a final order of deportation. One may apply for the waiver if deportation proceedings are still open or the proceedings have already been terminated or administratively closed.
What Is Extreme Hardship?
Extreme hardship is not defined by statute and is different for each applicant.
Generally, USCIS is looking for any of the following factors:
- Qualifying relative cannot move abroad due to serious medical condition
- Qualifying relative has a major medical issue and cannot travel abroad and cannot be left alone
- Qualifying relative would be unable to work abroad and would lose all benefits and suffer financially
- Qualifying relative is caring for others in the U.S., such as aging parents or minor children
- Qualifying relative will not be able to continue their education
- Other hardship factors
Get Assistance from New Jersey Immigration Attorneys on Your Case
Only a lawyer can offer you legal advice regarding your I-601 application. If you have questions regarding what you need to do, what you’re eligible for, and the most likely path to success for permanent residency, speak with the Law Offices of Lloyd E. Bennett, Esq., P.C. today. We provide initial consultations that answer all your questions regarding the green card application process. We review your personal records, criminal history, immigration history, and family history to determine all your options for permanent residency—and we put your green card application on the most effective path to success.
Since 1987, our immigration firm in New Jersey has helped over 10,000 individuals and businesses secure visas, green cards, citizenship, and much more. We have the tools, knowledge, and experience to give you the best possible chance of earning a pardon of unlawful presence in the United States. Our staff promises to keep you educated and informed about every step of the process, addressing your questions as quickly as they appear. Most importantly, we promise to offer you the insight and advice that gives your application the best possible chance of succeeding.