I-601A or I601 Waiver of Inadmissibility: Legal Requirements

If you are in the United States but have committed acts that have resulted in you being labeled as inadmissible for entry into the country, there are still ways of staying in the U.S. by applying for a Provisional Unlawful Presence Waiver. Also known as the “statewide” waiver of inadmissibility, Form I-601A lets certain, eligible people apply for a waiver of bans for unlawful presence in the United States. This is different than a person leaving the United States under factors of inadmissibility to attend their consular interview.

What Is the Difference Between Form I-601 and Form I-601A?

Both Form I-601 and Form I-601A are requests for waivers because of inadmissibility to the United States. However, the two forms are extremely different and you must use the correct form when requesting to waive your grounds for ineligibility into the U.S.

Waiver I-601A is specifically for the purpose of waiving only the 3- or 10-year ban in order to keep families together. This specialized form was created to resolve the uncertainty surrounding the reasons for inadmissibility in the United States Citizenship and Immigration Services’ (USCIS) previous waiver method. Previously, applicants had to go to an interview in their home country without a guarantee of waiver approval, which forced them to leave the U.S. This new method is meant to eliminate the threat of entrapment outside the United States.

Form I-601 is for those who are inadmissible under certain circumstances. Many people who use Form I-601 are K or V Visa applicants residing outside the United States, applicants for Adjustment of Status, and Temporary Protected Status (TPS) applicants.

With both forms, applicants need to show that their qualifying relative will go through extreme hardship if they were to be banned from the United States.

The biggest difference between the two forms is the reason for inadmissibility. Form I-601A is specifically designed for the ban while Form I-601 is for most other grounds of inadmissibility, including health reasons, criminal history or intent, poverty, lack of labor certification, and more.

Who Is Eligible for a Form I-601A Waiver?

You can file for a Form I-601A waiver if you are a:

• Relative of a U.S. citizen and/or permanent resident
• Diversity Visa lottery winner
• Immigrant visa applicant

You must also meet the following qualifications when filing for your waiver of inadmissibility:

• Be physically present in the United States and be able to provide biometrics in the U.S.
• Be at least 17 years old
• State that you will leave the U.S. in order to legally obtain your immigrant visa
• State that your family—notably your spouse or parent who is a U.S. citizen or Lawful Permanent Resident (LPR)—will suffer extreme hardship if you are not united with them in the United States
• You are either:
  • Inadmissible for unlawful presence between 180 to 365 days in a single stay; or
  • Inadmissible for unlawful presence for more than or equal to one year during a single stay
• You have a case with the U.S. Department of State for an approved immigrant visa petition or a Diversity Visa Program

Who Is Not Eligible for a Form I-601A Waiver?

You do not qualify for the I-601A waiver if you:

• Are younger than 17
• Have grounds of inadmissibility for any other reason than unlawful presence
• Already have an application to adjust your status
• Are currently going through removal proceedings
• Do not include the details of the hardships your spouse or parent would face upon your removal
• Do not have a pending case with the U.S. Department of State because of an approved visa petition or selection for a Diversity Visa
• Already have a prior order of removal before or during a pending I-601A

Requirements for the Unlawful Presence Waiver: What Is Extreme Hardship?

In order to qualify for the I-601A waiver, you must show that your U.S. citizen or LPR spouse or parent will suffer extreme hardship if you were to be removed from the United States. But what exactly qualifies as an extreme hardship that will meet the requirements for filing a waiver of inadmissibility? And what is a 601 waiver-qualifying relative?

You must prove that your family, specifically your spouse or parent, will suffer greatly from your departure, more so than what could qualify as normal hardships. A 601 waiver-qualifying relative is someone who is a spouse or parent who holds U.S. citizenship or who is a Lawful Permanent Resident. Extreme hardship can include any of the following:

• The mental or physical health of the qualifying relative requires specialized treatment — the length of the treatment is also a factor, including if your relative’s condition is chronic, acute, long-term, or short-term
• Certain personal reasons that involve your country of origin or considerations such as separating a family and how old your family members are
• There is an educational need that requires specified training and/or the loss of an educational opportunity
• There is extreme loss due to financial hardship, such as a cost of care for family members, loss of home or business, or major decline in your and their living situation
• If there are cultural considerations that warrant fear and threat of persecution and harm should you return to your country of origin

It is important to include all information that you believe is pertinent to your case. An immigration attorney can help you both compile and present your case for eligibility for a provisional unlawful presence waiver.

601A Waiver for Illegal Entry Checklist

If you are wondering how to get a 601 waiver approved, you need to show that you meet the 601 waiver requirements by providing the following material to USCIS:

• Evidence of your relationship to the 601 waiver-qualifying relative who is a U.S. citizen or LPR—you must show that they are accepted under the qualifying relative category
• Evidence of admission or parole
• Evidence of extreme hardship
• If applicable, either your immigrant visa petition approval notice or Department of State Electronic Diversity Visa Entrant Status Check
• If applicable, a copy of your Department of Justice Executive Office for Immigration Review Administrative Closure Order
• Copy of your Form I-797 as a source of approval for your Form I-212
• DOS Immigrant Visa Processing Fee Receipt
• Any other piece of evidence demonstrating why you should be waived from inadmissibility

The USCIS may issue an I-601 waiver request for evidence (RFE) under Immigration and Nationality Act (INA) section 212(a)(9)(B). Asking your attorney for a waiver of inadmissibility sample and sample evidence may be helpful in your pursuit of your waiver application.

How to Apply for an I-601A

First and foremost, you must be in the United States when you apply for and submit your Form 601A unlawful presence waiver. Unlike many applications, the I-601A waiver is a standalone form, meaning that you submit only this form (and its supporting documents) to USCIS. No other applications can be filed during the time of filing Form I-601A. If you submit any other forms during the time of your Form I-601A submission, your waiver request will be denied.

You must follow the USCIS Form I-601A instructions when applying for your waiver. Your immigration attorney can help you fill out the waiver request and make sure that you meet all of the necessary requirements. You will also need to attend a biometrics appointment and you may be asked to attend an interview with USCIS. You can prepare for I-601A interview questions with an experienced attorney.

Remember that the unlawful presence waiver is for those who have qualifying family members that will suffer extreme hardship due to your absence from the U.S. If you are an I-601 qualifying-relative child, meaning your parent will suffer, you need to discuss this during your application and interview, if applicable.

Again, the I-601A waiver form is a specialized version of the waiver for those who are asking to waive a 3- or 10- year ban. If you are found inadmissible for other reasons, speak to your immigration attorney about filing Form I-601.

Where to File an I-601A Waiver

You will need to send your unlawful presence waiver form to the Chicago Lockbox facility. Your attorney can help you find where to file an I-601 waiver, as there are specific direct filing addresses for Form I-601.

Form I-601A Cost

The filing fee for Form I-601A is $630, plus an additional $85 biometrics fee.

What Are Form I-160 and I-601A Approval Rate Factors?

Extreme hardship waiver approval rates depend on the specific circumstances of your inadmissibility. If your inadmissibility was for overstaying your visa and nothing more, your chances of having your ban waived are higher. But if there are factors present such as criminal history, immigration fraud, or other visa violations, the chances of approval for your Form I-601 or I-601A will decrease.

How Long Does a Hardship Waiver Take to Get Approved?

The latest I-601A processing time is from USCIS’s site and depends on where you need to file your unlawful presence waiver. The I-601A processing time can take between 17 to 23 months out of the Nebraska Service Center. If you submit to the Potomac Service Center, processing time can take between 26 to 33.5 months.

I-601 processing time can vary widely, so speak with your immigration lawyer about where you need to file your waiver application and what the expected processing times mean for your specific case.

601A Waiver Approved, Now What?

If your 601A waiver is approved, you can then apply for a U.S. green card. This must be done through consular processing, meaning you must return to your country of origin and apply for your green card from your home country’s U.S. Embassy or consulate.

You will submit your approved Form I-601A waiver with your green card application. By showing your extreme hardship waiver approval, you are showing that you have been waived from the 3-or 10-year ban.

Remember, if your waiver is pending, you are not granted any protection from removal from the United States, nor does the waiver for illegal entry guarantee an immigration visa will be approved. You must still apply for a green card and go through lawful entry through U.S. Customs and Border Protection. The I-601 waiver is to show your previous ban has been waived and you can now lawfully enter the United States after consular processing.

What if Your I-601A Provisional Waiver Is Denied?

If your 601A provisional waiver is denied, you are not allowed to file an administrative appeal.  But there are steps you can take after your denial or before the final decision is made.

Can I File a New I-601A Waiver Application If My Prior I-601A Waiver Request Was Denied?

Yes, you may file a new Form I-601A. You will need to submit all required documents and filing fees.

Benefits of Working With an Immigration Lawyer for Your Form I-601 or I-601A

Filing your Form I-601A, Application for Provisional Unlawful Presence Waiver can be a complicated and difficult process. This waiver will determine whether or not you will remain banned from the United States, so the stakes are high. Working with an experienced lawyer who is familiar with the form and knows how to gather the required evidence can benefit you greatly.

Our immigration attorneys at Scott D. Pollock & Associates P.C. have been practicing immigration and nationality law for over 30 years and have over 70 years of combined experience. We have the knowledge and resources available to guide you through the process of applying for a waiver. If you have any questions or would like help with your application, we are here to help. Call us at 312.444.1940 or fill out an online contact form today.

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