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Nuñez Law Firm

I-601A Waiver – Provisional Unlawful Presence Waiver

At Nuñez & Associates, we’ve successfully helped immigrant families prepare waiver applications, including the new I601-A Waivers for spouses of U.S. citizens facing removal. Give us a call today and we’ll prepare a compelling waiver application for you and your loved one, too.

When filing for any waiver, presentation is everything. The DHS receives thousands of waiver applications each year and everybody’s got a story to tell for why they should be allowed to stay in the U.S. As a result, generally only the most convincing and most organized of applications receive approval.

Are you in the U.S. unlawfully?

There are thousands of immigrants in the U.S. who have overstayed visas and are in the U.S. unlawfully. A person may be in the U.S. unlawfully even if he or she is married to a U.S. citizen. These individuals are not eligible to use adjustment of status to gain permanent residency.  Under the old rule, these individuals had to leave the U.S. in order to apply for an immigrant visa and waiver of unlawful presence to gain lawful reentry. However, a 2013 rule change on the unlawful presence waiver (I-601A) changes that. Now, spouses of U.S. citizens who are still in the U.S. but have been ordered to depart may apply for a waiver to have the removal decision determined in the U.S. rather than in the consulate within their country of origin.

Under U.S. immigration law, if you are in the U.S. unlawfully for 180 days to one year and leave the U.S. to apply for an immigration visa in your home country, you will be banned from reentry for three years. If your unlawful status in the U.S. was more than one year, you would be barred for ten years. An unlawful presence waiver can permit you to apply for an immigration visa regardless of how long you have been in the U.S.; you could then gain reentry provided you meet all other conditions.

The 2013 rule allows spouses of U.S. citizens who have overstayed their visa and are in the U.S. illegally to apply for a waiver while still in the U.S. Previously, the spouse had to depart and apply abroad, a process that was interminable and caused substantial grief to families. Under the old rule, families could be subjected to extended periods of separation and the uncertainty of whether a spouse would be permitted to return to the U.S. anytime in the near future.

However, the spouse still must demonstrate that a denial of his or her permanent residency status would cause extreme hardship to the U.S. citizen spouse.

The rule has the following eligibility requirements for those seeking a waiver under 601A:

  • You are in the U.S.
  • You can prove hardship to your American citizen spouse if you are denied permanent residency status
  • Your sole reason for inadmissibility is unlawful presence, such as an expired visa
  • You have not been convicted of a felony or, at least, two misdemeanors
  • You are the beneficiary of an approved immediate relative petition
  • Your case is pending with the U.S. Department of State based on your approved petition, and all processing fees have been paid
  • You have to depart to get the immediate relative immigration visa

Circumstances in Applying for a Waiver

If you are involved in removal proceedings and removal orders have not been issued, you should seek the advice of an attorney. An attorney may help to have the proceedings administratively closed or terminated, or closed and also terminated. Then, you may apply to the USCIS for the unlawful presence waiver before departing for your home country. If final orders of removal have already been issued, your attorney may try to have the proceedings reopened and then administratively closed, so you are eligible to apply for the waiver.

You may not be eligible for a waiver if you are under 17 years old or there are grounds for inadmissibility. However, if the basis for removal is in a low priority category, then you will not be referred to ICE for removal proceedings. High priority applies to persons who committed aggravated felonies, engaged in fraud, participated in the persecution of persons abroad or are considered a threat to public safety or national security.

Applying for any type of immigration waiver or adjustment of status can be a complex and time-consuming process. Contact our office today so we may discuss your immigration needs.