Applying For A Unlawful Presence Waiver
Why you need an I-601A Waiver when you entered the U.S. without a visa...
This article will cover who is eligible to apply for a waiver that will waive a non-citizen’s unlawful presence in the US, the process by which the waiver is filed, and the legal requirements of establishing “extreme hardship.”
The typical situation of when a provisional waiver for unlawful presence is filed is when a non-citizen entered the US without a visa, and has since married a US Citizen. Another qualifying relative could be the child of a USC or LPR Parent, but for the purposes of this example, we will focus on the spouse.
By marrying the US Citizen, the citizen-spouse is eligible to file Form I-130, Petition for Alien Relative with USCIS. However, the non-citizen spouse is ineligible to file an adjustment of status application while in the US, under INA § 245(a), because the non-citizen spouse did not enter the US on a visa.
Therefore, the process of receiving a green card will take the following path.
The citizen spouse will file Form I-130, Petition for Alien Relative with USCIS.
After USCIS approves Form I-130, the application package will be sent to the non-citizen spouse's home country consulate.
Once the National Visa Center contacts you and/or your attorney that a case has been created, you will need to pay all NVC fees, and then notify NVC that you are planning to file Form I-601A with USCIS. It is important to notify NVC as soon as possible so they do not schedule an interview for your non-citizen spouse. At the time of writing this article, the email address to notify NVC is NVCi601a@state.gov. Provide NVC your case number, the applicant’s first and last name, date of birth, and the petitioner’s first and last name and date of birth in your email.
Then, file Form I-601A, Application for Provisional Unlawful Presence Waiver with USCIS because USCIS will also notify NVC that you filed a waiver application.
Finally, if USCIS approves the Form I-601A, it will inform NVC that it has approved Form I-601A, so that NVC can schedule an immigrant visa appointment for your non-citizen spouse
The policy goal behind this process is so that your immediate relative will spend less time away from the qualifying family member (spouse or parent) while they interview at their home consulate so that they can then re-enter the US on a immigrant visa.
The most important part of the waiver is establishing 'Extreme Hardship' on the qualifying relative. A qualifying relative is either a USC or LPR Spouse, or USC or LPR Parent. USCIS uses “guiding principles” to assess extreme hardship because extreme hardship is not defined in the Immigration and Nationality Act.
As a general rule, extreme hardship must exceed what would normally be expected by separation, but not unique, nor is the standard as high as “extremely unusual hardship” that exists in other waivers. USCIS has a detailed section in their Policy Manual on what is extreme hardship, so I recommend starting there to assess its means, and we will release future articles on specific cases that deal with extreme hardship. Click here to access the USCIS Policy Manual.
If you believe you need to file an I-601A, Provisional Waiver for Unlawful Presence, please set up an appointment by calling our office or contacting us on our website.
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