What are the legal requirements?
To be eligible for the I-601A Provisional Waiver for Unlawful Presence, you must fulfill ALL of the following conditions:
- Be 17 years of age or older.
- Be physically present in the United States to file your application for an I-601A provisional unlawful presence waiver and provide biometrics.
- Have a case pending with the U.S. Department of State, based on:
- An approved immigrant visa petition (family-based or employment-based), for which the Department of State immigrant visa processing visa has been paid; OR
- Selection by the Department of State to participate in the Diversity Visa Program under section 203(c) of the Immigration & Nationality Act or the fiscal year for which the alien registered;
- Will depart from the United States to obtain the immigrant visa.
- Meet the requirements for a waiver provided in section 212(a)(9)(B)(v) of the Immigration & National Act. Namely, to be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen or U.S. lawful permanent resident spouse or parent.
- You are inadmissible ONLY for unlawful presence in the United States for more than 180 days but less than 1 year during a single stay (INA Section 212(a)(9)(B)(i)(I)), or unlawful presence in the United States for 1 year or more during a single stay (INA Section 212(a)(9)(B)(i)(II).
You are NOT eligible for the I-601A Provisional Waiver for Unlawful Presence if any of the following conditions apply to you:
- You are under the age of 17.
- You do not have a case pending with the U.S. Department of State based on:
- An approved immigrant visa petition (family-based or employment-based), for which the Department of State immigrant visa processing fee has been paid; OR
- Selection by the Department of State to participate in the Diversity Visa program under section 203(c) of the Act for the fiscal year for which the alien registered;
- You are subject to one or more grounds of inadmissibility other than unlawful presence.
- You have a pending Form I-485 Application to Register Permanent Residence or Adjust Status with the USCIS
- You are in removal proceedings, unless your removal proceedings have been administratively closed and have not been placed back on the Dept. of Justice, Executive Office for Immigration Review calendar to continue your removal proceedings at the time you file the Form I-601A.
- You are subject to an administratively final order of removal, deportation, or exclusion under any provision of law (including an in absentia order under section 240(b)(5) of the Act), unless you have already filed and USCIS has already granted, before you apply for a provisional unlawful presence waiver under 8 CFR 212.7(e), an application for consent to reapply for admission under section 212(a)(9)(A)(iii) of the Act and 8 CFR 212.2(j) (i.e. you filed and received approval of the I-212 waiver).
- CBP or ICE, after service of notice under 8 CFR 241.8, has reinstated a prior order of removal under section 241(a)(5) of the Act, either before the filing of the provisional unlawful presence waiver application or while the provisional unlawful presence waiver application is pending.
- You fail to establish that the refusal of your admission would result in extreme hardship to your U.S. citizen or U.S. lawful permanent resident spouse or parent, or that your application should be approved as a matter of discretion.
The foreign national must demonstrate that his or her qualifying relative (the U.S. citizen or U.S. lawful permanent resident spouse or parent) would suffer extreme hardship if they cannot be united. Hardship to the foreign national is only considered to the extent that it is a source of hardship to the U.S. citizen or U.S. lawful permanent resident spouse or parent.
USCIS officers will generally consider the following factors in determining whether extreme hardship has been met in any individual case:
- Health of the qualifying relative: ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in the foreign national’s country, anticipated duration of the treatment; whether a condition is chronic or acute, or long or short-term.
- Financial considerations: future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs, such as special education or training for children; cost of caring for family members (i.e., elderly and infirm parents).
- Education: loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time in grade; availability of special requirements, such as training programs or internships in specific fields.
- Personal considerations: close relatives in the United States and/or the foreign national’s country; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.
- Special considerations: cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures.
- Any other information that explains how your personal circumstances may qualify as imposing extreme hardship on a qualifying U.S. citizen or lawful permanent resident relative.
Spouses must demonstrate that their relationship will suffer more than the normal hardship or financial inconvenience caused by family separation.
Applicants must submit the I-601A Provisional Waiver Application; Petition Approval Notice; Dept. of State Immigrant Visa Processing Fee Receipt; Proof of Relationship to a Qualifying Relative; Citizenship Status of the Qualifying Relative; a thorough and persuasively-written extreme hardship statement; personal affidavits; and a comprehensive set of supporting documents to convince the USCIS officer that they will suffer more than the average person in the same situation. I have in-depth experience in this niche area of immigration law and have successfully represented spouses throughout the United States since 2002.
As part of my legal service for I-601A Provisional Waiver clients, I always include preparation and filing of the immigrant visa petition (family-based) to establish eligibility for submission of the I-601A Provisional Waiver.
Please refer to our in-depth discussion of “Extreme Hardship” for further information on “Extreme Hardship”.