A Guide to the I-601A Waiver of Unlawful Presence for Immediate Relatives of U.S. Citizens, and soon, for Immediate Relatives of Permanent Residents

On January 2, 2013, the United States Department of Homeland Security announced that illegal immigrants who are immediate relatives of United States Citizens (spouse, child between 17-21, or parent of a child over 21) could apply for the I-601A “Provisional Unlawful Presence Waiver” within the United States. In the past, immediate relatives of U.S. citizens were not able to apply for a green card within the United States, if they entered the United States without inspection or overstayed the expiration of their visa, and would be subject to the 3- or 10-year bar for unlawful presence once they departed the United States to apply for a green card at a United States consulate in their home country. Form I-601A Application for a “Provisional Unlawful Presence Waiver” changed this. The form allows immediate family members of U.S. Citizens to apply for the waiver while they are still in the United States. However, the I-601A waiver is only available to individuals whose sole basis of inadmissibility to the United States would be the 3- or 10-year bar for unlawful presence if they departed the United States.

Furthermore, people who qualify for this waiver must still leave the United States, but they will only have to leave to attend an interview at the consulate in their home country if their extreme hardship waiver is pre-approved. This means that instead of waiting outside the United States for potentially more than a year for their waiver application to be decided and risk not being allowed back in the United States for 10 years, they can now wait in the United States while they live with their family. In addition, this eliminates the risk of not being allowed to return to the United States upon departure. In other words, the time they will be required to remain outside the United States could be reduced to a couple of weeks or even days.

The Old Rule

Until January 2, 2013, an immigrant who entered the United States without inspection, a term that usually means simply walking across the border illegally, could not apply for a green card in the United States even if they were married to a United States citizen, except under certain rare circumstances. There was a special law first enacted in the 1990s called 245(i) that allowed many illegal immigrants to apply for a green card as long as a family or labor petition was filed for them before a certain deadline. The deadline was eventually set to April 30, 2001, and for that reason, the 245(i) law helps very few people today. So, people who were not eligible to file their green card applications in the United States were required to leave the country and apply for what is known as an “Extreme Hardship Waiver” at the Consulate. Needless to say, very few people willingly left the United States and their families to apply for a waiver in their home country because it could take more than a year for the application to be processed and they would be stuck in the home country for 10 years if their waiver application was denied.

The “Extreme Hardship” Test Applied to Waiver Applications

The legal standard for the I-601A waiver is the same as it is for an I-601 waiver under the old rule, and that is “Extreme Hardship.” There are decisions in immigration court cases from the Board of Immigration Appeals that define “Extreme Hardship” as being more than the normal hardship experienced by persons who are separated from their families. This means that simply filling out the form and submitting a brief statement claiming that the immigrant’s spouse and/or parent would suffer extreme hardship is likely to lead to a denial.

On the other hand, waivers get approved every day. Following are some examples of Extreme Hardship, but the list is not exhaust: (1) Ongoing or specialized treatment required for a physical or mental condition suffered by the U.S. citizen, availability or quality of such treatment in the foreign country, and how the condition would further be enhanced by the separation of the U.S. citizen and you, or by the relocation of the U.S. citizen to your home country; (2) Future employability, loss due to sale of home or business or termination of a professional practice by the U.S. citizen, a decline in standard of living, ability to recoup short term losses, cost of extraordinary needs (such as special education or training for children with special needs) or the cost of care for family members such as elderly or sick parents. (3) Loss of opportunity for a higher education for the U.S. citizen if s/he were to relocate with you, among others.

Who is Eligible

In order to be eligible to apply for the current I-601A waiver, the applicant must:

  • Be married to a U.S. citizen (or in some cases, immigrants between 17 and 21 years old who have a U.S. citizen parent, or immigrants who have a U.S. citizen child over 21 years old);
  • Have an approved I-130 family-based petition;
  • Be present in the U.S. at the time of filing the application for the waiver; and
  • Prove Extreme Hardship to his or her U.S. citizen spouse or parent.

Upcoming Rule

On July 29, 2016, the United States Department of Homeland Security announced that it plans to expand the benefits of the I-601A waiver to immediate relatives of U.S. Residents, not just U.S. Citizens. The department also announced its plan to update form I-601A effective August 29, 2016. However, the department has yet to release more information regarding eligibility, and if the “Extreme Hardship” test will be modified.

Nonetheless, I anticipate the eligibility requirements to be very similar to the ones of the current I-601A waiver, that is:

  • Be married to a U.S. Resident (or be the child of a U.S. Resident);
  • Have an approved I-130 family-based petition;
  • Be present in the U.S. at the time of filing the application for the waiver; and
  • Prove Extreme Hardship to your U.S. Resident spouse or parent.

Lastly, as soon as the department releases new information, it will be posted on this site.