I-601 VS I-601(a) WAIVERS
UNLAWFUL PRESENCE VS INADMISSIBIITY
2 Types of Waivers:
1. I-601, Application for Waiver of Grounds of Inadmissibility
2. I-601A, Application for Provisional Unlawful Presence Waiver
Both the I-601, Application for Waiver of Grounds of Inadmissibility (Hardship Waiver), and the I-601A, Application for Provisional Unlawful Presence Waiver (Provisional Waiver), are waivers used to adjust the status of an individual who is unlawfully in the United States, in the hopes they will be able to obtain a green card.
Although the two waivers are fairly similar, the main difference between them is the location of the applicant: Form I-601 is for those individuals who are outside the U.S., while Form I-601A is for those individuals who are inside the U.S.
Through the use of Form I-601 or Form I-601A, certain foreign individuals who are unable to immigrate to the U.S. because they are inadmissible can request a waiver of their inadmissibility. However, there are certain categories of inadmissibility considered so serious that the U.S. government will not grant a waiver for them.
For the I-601 waiver, U.S. Citizenship and Immigration Services (USCIS) reevaluates the circumstances surrounding the act(s) that made the applicant inadmissible, weighing them against the hardship created for their relative by their absence The more severe the inadmissibility category, the greater the burden of proof for the hardship that would be created.
The process for the I-601A waiver is slightly different. With this waiver, individuals who are undocumented immigrants or who overstayed their visa must prove that the time and distance away from their U.S. citizen spouse, child(ren) or parent(s) would create an extreme hardship.
In essence, this waiver allows the immediate family members of U.S. citizens to begin the application for an immigrant visa without having to first leave the U.S.
There are some requirements for the I-601A that will eventually require the applicant to leave the U.S., however.
According to USCIS, “Foreign nationals who are not eligible to adjust their status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return.”
In other words, even if an applicant’s waiver is approved, they must still leave the U.S. to interview abroad with a U.S. consular officer.
601 Application for Waiver of Grounds of Inadmissibility
Who Should Use Form I-601?
If one has been denied a visa or other immigration benefit, an I-601 waiver may be filed to have the USCIS review and remove the reasons one was found ineligible.
You can use this form if
1. Your Green Card application was denied
2. You are applying for Adjustment of Status
3. You are applying for Temporary Protected Status
4. You are applying for the Nicaraguan Adjustment and Central American Act
5. You are applying for the A Haitian Refugee Immigrant Fairness Act
6. You are applying for the Violence Against Women Act
If you are an applicant for adjustment of status to lawful permanent residence, or you are an applicant for an immigrant, K, or V nonimmigrant visa (and you are outside the United States and were found inadmissible during your interview,) you may file this application to obtain relief from the following grounds:
1. Health-related reasons
2. Immigration Fraud/Other Crimes
3. Membership in a Totalitarian Party
4. Immigrant Smuggling
5. Inadmissibility Because of the 3-Year or 10-Year Unlawful Presence Bar
6. Immigrants Previously Removed (NACARA and HRIFA)
7. Unlawfully Present After Previous Immigration Violations (NACARA, HRIFA, and VAWA)
8. If your application for a Green Card through adjustment of status has been denied
601A, Application for Provisional Unlawful Presence Waiver
Who Should Use Form I-601A?
Form I-601A, Application for Provisional Unlawful Presence Waiver, allows eligible relatives of U.S. citizens/ permanent residents to request a waiver of a multi-year bar for being unlawfully present in the United States. An applicant who has an unlawful presence in the U.S. for a period of time could face being banned from the U.S. for up to 10 years. This form allows for an applicant to appear at a U.S. Embassy or U.S. Consulate for an immigrant visa interview before they depart the United States to promote family unity.
You may file Form I-601A if you:
1. Are currently present in the United States
2. Are at least 17 years old at the time of filing
3. Have an immigrant visa case pending with the Department of State (DOS) because
4. You have an approved Form I-130 (Petition for Alien Relative), an approved Form I-140 (Petition for Alien Worker), or an approved Form I-360 (Petition for Amerasian, Widow(er), or Special Immigrant) and you have paid the immigrant processing fee to the DOS and are currently in the process of getting your immigrant visa;
5. You have been selected by the DOS to participate in the Diversity Visa (DV) program and are currently in the process of getting your
immigrant visa; or
6. You are the spouse/child of someone who has an approved immigrant visa petition and has paid the immigrant processing fee to the DOS, or you are the spouse/child of someone who is selected to participate in the Diversity Visa (DV) program and are currently in the process of getting your immigrant visa
7. Believe you are or will be inadmissible only for a period of unlawful presence in the US that was
a. Over 180 days, but less than 1 year during a single stay
b. One year or more in a single stay.