I-601A Waiver - Provisional Unlawful Presence Waiver
FAQ
Questions and Answers
Q: Who needs an I-601A waiver?
A: Certain immediate relatives of US Citizens who are inadmissible based on accrued unlawful presence in the United States. See INA 212(a)(9)(B).
Q: Am I eligible to file for an I -601A waiver?
A: Eligibility is based on the facts and circumstances of your case. Generally, you may be eligible to file I-601A if you meet the following requirements:
- You are at least 17 (seventeen years old) at the time of filing;
- You are physically present in the United States;
- You are the beneficiary of a I-130/I-360 petition that has been approved and you are classified as the immediate relative of a US citizen;
- Your case is pending with the Department of State based on the approved I-130/I-360;
- You paid the immigrant visa processing fee;
- You are inadmissible due to the fact that you have accrued unlawful presence for either more than 180 days but less than a year or more than one year.
Q: Who is a qualifying relative for purposes of proving extreme hardship?
A: A qualifying relative can be a US Citizen spouse or parent. The qualifying relative does not need to be the relative who filed the petition.
Q: How can I prove extreme hardship?
A: The evidence required to prove extreme hardship depends on the facts and circumstances of your case. The issue of whether or not your qualifying relative will experience extreme hardship is a complex one. Some of the factors considered include but are NOT limited to the following: medical conditions, financial circumstances, educational issues, separation from relatives/family members; cultural and linguistic obstacles.
Q: What documents do I need to prove an extreme hardship?
A: In support of your claim for extreme hardship, you may include affidavits, expert reports, expert opinions, financial documents, demographic reports, medical documentation, country condition reports, etc. It is crucial to contact a lawyer who can help you prepare a compelling case for a provisional waiver.
Q: My waiver application was rejected. Can I file again?
A: Yes, if your application was rejected because you did not comply with certain filing requirements, you can cure the deficiencies and file again.
Q: If my application is rejected, am I going to get the filing fee back?
A: If your application was "rejected," USCIS will return the filing fee.
Q: If my I-601A is denied, will I get the filing fee back?
A: No.
Q: I am outside the United States. Am I eligible to file I-601A?
A: No.
Q: Can I appeal a denial of my I-601A?
A: No, however, you may file a new I-601A.
This is a quote by DHS: "If USCIS denies your provisional unlawful presence waiver, you cannot file an administrative appeal or a motion to reopen or reconsider.
However, if your provisional unlawful presence waiver request is denied or if you withdraw your provisional unlawful presence waiver application before USCIS makes a final decision, you may file a new Form I-601A, in accordance with the form instructions and with the required fees. Your immigrant visa case must also be pending with DOS. In the case of a withdrawn Form I-601A, USCIS will not refund the filing fees because USCIS has already taken steps to adjudicate the case."
Q: Can I file a motion to reopen or reconsider if my provisional waiver (I601A) is denied?
A: No, however, you may file a new I-601A.
This is a quote by DHS: "If USCIS denies your provisional unlawful presence waiver, you cannot file an administrative appeal or a motion to reopen or reconsider.
However, if your provisional unlawful presence waiver request is denied or if you withdraw your provisional unlawful presence waiver application before USCIS makes a final decision, you may file a new Form I-601A, in accordance with the form instructions and with the required fees. Your immigrant visa case must also be pending with DOS. In the case of a withdrawn Form I-601A, USCIS will not refund the filing fees because USCIS has already taken steps to adjudicate the case."
Q: I am in removal proceedings. Can I file for a provisional waiver?
A: No, unless your removal proceedings have been administratively closed.
Q: I am indigent. Can I get a waiver of the I-601A fee?
A: No.
Q: What are my chances of approval?
A: The answer to this question depends on your specific case and the underlying facts and circumstances. Proving "extreme hardship" is not easy, so you need to prepare your case carefully and hopefully with the help of a lawyer who is aware of the legal standard pertaining to extreme hardship including precedents (court cases discussing extreme hardship). Filing the I-601A form with no supporting documentation is likely to result in a denial of your application for a provisional waiver.
Q: My I-601A was approved. Now what?
A: Congratulations! Once your I-601A waiver gets approved, USCIS will inform the National Visa Center of the approval. You will have to depart the United States and attend your interview at the Consulate/Consular Office in your home country.
Disclaimer: The information provided above is for informational purposes only and should not be construed as legal advice.
Authored by: Aneliya Angelova
