Monthly Archives: February 2016

I-601 waiver or I-601A waiver for unlawful presence?

question markBoth the I-601 waiver and I-601A waiver are used to overcome the 3 year/10 year unlawful presence bar. I-601 waiver and I-601A waiver applicants must have a qualifying relative who will suffer extreme hardship if they are not granted re-entry to the U.S. before the 3 or 10 years pass. But there are key differences between the I-601 waiver and I-601A waiver application.

 

3 Year/10 Year Unlawful Presence Bar

Section 212(a)(9)(B)(i)(I) of the Immigration & Nationality Act (INA) states the 3 year bar to re-entry applies if you were unlawfully present in the U.S. for more than 180 days, but less than one year, and then depart the U.S. prior to commencement of removal proceedings. The U.S. government adds up all the days you were unlawfully present in the U.S. in a single ongoing period or stay (i.e. continuous period of unlawful presence).

The 3-year bar does not apply if you depart the U.S. after the Notice to Appear in removal proceedings is filed with the immigration court, following service of the NTA on you. But leaving the U.S. while you are in removal proceedings or being issued a removal order carries other immigration consequences.

Section 212(a)(9)(B)(i)(II) of the INA states the 10 year bar to re-entry applies if you were unlawfully present in the U.S. for one year or more, and then depart the U.S. The U.S. government adds up all the days you were unlawfully present in the U.S., even if they were from different periods or stays (i.e. the aggregate period of unlawful presence).

You begin to accrue unlawful presence only after April 1, 1997 and once you turn age 18.

The 3/10 year bar to re-entry is triggered only if you leave the U.S. This does not mean you should never leave the U.S. to legalize your immigration status, but you should know there are risks to your departure. (Illegally re-entering or attempting to illegally re-enter the U.S. further complicates your case and triggers a permanent bar under certain circumstances.)

A person who is inadmissible due to the 3 year/10 year bar may not receive an immigrant visa before the 3 year/10 year bar expires without first obtaining an I-601 waiver or I-601A waiver under section 212(a)(9)(B)(v) of the Immigration & Nationality Act. Only certain immigrants qualify for the waiver.

To determine whether to file an I-601 waiver or I-601A waiver to overcome the unlawful presence bar, you need to know the key differences:

1. The I-601 waiver application may be filed by immigrants who are the spouse or son or daughter of a U.S. citizen or permanent resident. The I-601A waiver may be filed only by immediate relatives of U.S. citizens, under current regulations. [UPDATE: On July 29, 2016, DHS published a final rule expanding the I-601A waiver. As of August 29, 2016, the provisional waiver is available to all eligible applicants.]

An immediate relative is the spouse of a U.S. citizen; child (unmarried and under 21) of a U.S. citizen; or parent of a U.S. citizen (who is over age 21). While having a U.S. citizen child allows the person to file for an I-601A waiver, he still needs a qualifying relative to fully qualify for and receive the waiver, just like regular I-601 waiver applicants.

A qualifying relative is a U.S. citizen or permanent resident spouse or parent.  By statutory law, a U.S. citizen or permanent resident child is not a qualifying relative for obtaining the unlawful presence waiver. Furthermore, like regular I-601 waiver applicants, I-601A waiver applicants must prove the qualifying relative will suffer extreme hardships if they are not admitted to the U.S. before the 3 year/10 year bar expires.

2. I-601 applicants file for the regular waiver on the Form I-601. I-601A applicants file for the provisional waiver on the Form I-601A.

Applicants file for the regular I-601 waiver on a Form I-601, Application for Waiver of Grounds of Inadmissibility. There are similar but different I-601 instructions from those of the I-601A.

On March 4, 2013, USCIS introduced the Form I-601A, Application for Provisional Unlawful Presence Waiver to allow certain immigrant visa applicants to obtain the unlawful presence waiver. There are similar but different I-601A instructions from those of the I-601.

3. The Form I-601 application is submitted after the person departs the U.S. The Form I-601A application is submitted before the person departs the U.S.

The I-601 application may be filed only when the person is outside the U.S. I-601 waiver applicants must first depart the U.S. and attend their visa interview at the U.S. Consulate before they may file for the regular waiver. They bear a higher risk of being separated from their family in the U.S. for 3 or 10 years, if they do not receive the waiver following departure from the U.S.  They must wait for the I-601 decision while they are outside of the U.S. and separated from their family.

The I-601A application may be filed only if the person is physically present in the U.S. I-601A waiver applicants file for the provisional waiver while they are still in the U.S, before they depart the U.S. and attend the visa interview at the U.S. Consulate.

Being granted the provisional waiver increases the likelihood that the U.S. Consulate will issue the immigrant visa at or shortly after the interview.  They may wait for the I-601A decision while they are still in the U.S. with their family. The provisional waiver provides several advantages, but has many limitations. For example, if the U.S. Consulate discovers the visa applicant has prior immigration violations or a criminal history, the approved provisional waiver will be revoked and the applicant has to file for the regular I-601 waiver (if available).

4. The I-601 waiver can be filed in conjunction with an immigrant visa or K visa. The I-601A can be filed only in conjunction with an immigrant visa. 

I-601 applicants may be seeking a  K-3 nonimmigrant or K-1 fiancé(e) visa based on an approved I-129F petition, not just an immigrant visa. In contrast, I-601A applicants must first have an approved I-130 (immigrant visa) petition filed on their behalf by a U.S. citizen petitioner. They also have to first pay the immigrant visa fee before they submit the provisional waiver request.

5. The I-601 waiver can be used to waive additional grounds of inadmissibility, such as criminal convictions and immigration fraud. The I-601A waiver waives only the 3/10 year unlawful presence bar.

The Form I-601 allows the applicant to file for multiple grounds of inadmissibility, such as crime-related grounds and fraud or willful misrepresentation to gain immigration benefits, not just unlawful presence.

Meanwhile, the Form I-601A application cannot be used to waive any grounds but unlawful presence in the U.S. If you are subject to other grounds of inadmissibility, such as a prior removal order, illegal re-entries to the U.S., false claims to U.S. citizenship, immigration fraud, or criminal convictions, you may not file the Form I-601A.

If USCIS determines, based on the record, there is reason to believe you are inadmissible on grounds other than unlawful presence, it will deny your Form I-601A.

In January 2014, USCIS clarified that it will not automatically deny the Form I-601A when the applicant has a criminal history. USCIS will review the entire record to determine whether the criminal offense falls within the “youthful offender” or “petty offense” exception, or is not a crime involving moral turpitude. If any exception applies, USCIS will continue to process the I-601A waiver request and approve it, assuming the requirements are met and a favorable exercise of discretion is appropriate.

Consult an Immigration Attorney

Because there are keys differences between the I-601 waiver and I-601A waiver, you should consult an immigration attorney to help you decide which waiver to file. A reliable attorney can also help you determine whether you need to actually depart the U.S. to apply for an immigrant visa, or whether you may apply for adjustment to permanent resident in the U.S. without leaving the country. (This is important to know because the 3 year/10 year is triggered only if you leave the U.S.)

If you are not eligible to adjust status, and you want to gain permanent residence in the U.S., you will need to depart the U.S. to apply for an immigrant visa. If you are inadmissible due only to the 3 year/10 year unlawful presence bar, the I-601A provisional waiver is the more appropriate waiver. But under current regulations, only immediate relatives of U.S. citizens may file for the I-601A waiver. And if you are inadmissible on multiple grounds, the I-601A waiver will not work.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Stefan Baudy

What should you do get an I-601 waiver for unlawful presence?

Section 212(a)(9)(B)(i)(I) of the Immigration & Nationality Act (INA) states the 3 year bar to re-entry applies if you were unlawfully present in the U.S. for more than 180 days, but less than one year, and then depart the U.S.  Under section 212(a)(9)(B)(i)(II), the 10 year bar to re-entry applies if you were unlawfully present in the U.S. for one year or more, and then depart the U.S. When you are subject to the 3/10 year unlawful presence bar, you need an I-601 waiver, available under INA § 212(a)(9)(B)(v), to return to the U.S. as an immigrant.

What Must You Submit When Requesting an I-601 [INA § 212(a)(9)(B)(v)] Waiver?

A section 212(a)(9)(B)(v) waiver applicant must submit a completed and signed Form I-601Application for Waiver of Grounds of Inadmissibility. The Form I-601 filing fee and sometimes a biometrics fee are required.

The Form I-601 instructions include a list of supporting documents you should submit with your waiver request. Examples are affidavits from yourself and third parties describing extreme hardships; expert opinions; medical documentation; and reports of conditions in your home country.

Evidence of extreme hardship 

If you qualify for the waiver on the basis that your U.S. citizen or permanent resident spouse, parent, son or daughter, or K visa petitioner, will suffer extreme hardship if you are denied admission to the U.S., you must present documentary evidence of the “extreme hardship.”

Similarly, if you are a VAWA self-petitioner applying for the waiver, you must show the denial of admission will result in “extreme hardship” to yourself (or qualifying relatives).

The agency considers a variety of factors when determining whether there is extreme hardship. They include:

  • Health: Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in your country, anticipated duration of the treatment; whether a condition is chronic or acute, or long-or short-term; need for applicant to assist with physical or mental conditions.
  • 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 care for family members (e.g. elderly and sick 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 for grade or pay level; availability of special requirements, such as training programs or internships in specific fields.
  • Personal Considerations: Close relatives in the U.S.; separation from spouse or children; ages of involved parties; length of residence and community ties in the U.S.
  • Special Factors: Cultural and language barriers; religious and ethnic obstacles; social unrest or civil war in your country; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures for support, guidance and protection.

Does Having an Immigration Attorney Make a Difference? 

Filling out the Form I-601 is just the first step. The harder part is convincing the agency that you are eligible for the waiver and deserve it as a matter of discretion.

Although “extreme hardship” is not defined by immigration law, it is more than just the normal emotional hardships or financial difficulties that result from family separation or relocation.  A good lawyer will help you prove your qualifying relatives will suffer extreme hardship if they are separated from you while you are abroad, or if they move overseas to be with you. If you are a VAWA self-petitioner, the lawyer will also help prove you personally would suffer extreme hardship if you are denied admission.

The presence of aggravating factors (e.g. criminal record) and lack of positive factors (e.g. active involvement in community or volunteer organizations) could lead to a denial of your waiver request. Needing another waiver, such as a section 212(h) waiver (for criminal and related grounds) or a section 212(i) waiver (for fraud or willful misrepresentation) also complicates your case. A good lawyer will help you prove the favorable factors outweigh the unfavorable factors in your case.

It’s much harder to get an I-601 unlawful presence waiver when you file it on your own and don’t have the benefit of counsel. You have 30 days to file a motion to reopen/reconsider or an appeal if your waiver request is denied. Otherwise, you may re-file the application with new, material evidence. Federal courts lack jurisdiction to review an agency’s decision on an I-601 waiver.

A diligent, experienced immigration attorney will advise you on the documentary evidence to submit, prepare a legal brief explaining how you qualify for the waiver and why you deserve it, and put together a strong waiver application to maximize the chance of success.

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Any period of unlawful presence prior to April 1, 1997 – the date the law went into effect – does not count toward the 3 year/10 year bars.  In addition, a minor who is unlawfully present while under age 18 does not accrue any time toward the 3 or 10 year bars. Upon turning 18, he begins to accrue unlawful presence toward the bars.

For more information on when the 3/10 year bar applies, who qualifies for the I-601 [INA § 212(a)(9)(B)(v)] Waiver, and the limitations of the waiver, read our related article, When do you need an I-601 waiver due to unlawful presence (and how do you get it)?

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

SUBSCRIBE           CONTACT

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When do you need an I-601 waiver due to unlawful presence (and how do you get it)?

no entryWhen a non-citizen (other than a permanent resident) leaves the U.S. after accruing unlawful presence in the U.S. for more than 180 days, the 3 year/10 year bar to re-entry is triggered.  A person who is inadmissible due to unlawful presence may not receive an immigrant, K-3 nonimmigrant, or K-1 fiancé(e) visa before the 3 year/10 year bar expires without first obtaining an I-601 waiver under section 212(a)(9)(B)(v) of the Immigration & Nationality Act. Only certain immigrants qualify for the waiver.

The unlawful presence bar begins to apply once you depart the U.S., even if it is to file for an immigrant visa at the U.S. Consulate.

When Are You Inadmissible Due to Unlawful Presence [INA§ 212(a)(9)(B)(i)]? 

You are unlawfully present in the U.S. if you (a) remain in the U.S. after your period of authorized stay expires (e.g. I-94 admission period expires and you have no pending application or petition to extend, change, or adjust status); or (b) enter the U.S. without being lawfully admitted or paroled (e.g. illegally cross the border without proper inspection).

3-Year Bar

Section 212(a)(9)(B)(i)(I) of the Immigration & Nationality Act (INA) states the 3 year bar to re-entry applies if you were unlawfully present in the U.S. for more than 180 days, but less than one year, and then depart the U.S. prior to commencement of removal proceedings.  The U.S. government adds up all the days you were unlawfully present in the U.S. in a single ongoing period or stay (i.e. continuous period of unlawful presence).

The 3-year bar does not apply if you depart the U.S. after the Notice to Appear in removal proceedings is filed with the immigration court, following service of the NTA on you. But leaving the U.S. while you are in removal proceedings or being issued a removal order carries other immigration consequences.

10-Year Bar

Section 212(a)(9)(B)(i)(II) of the INA states the 10 year bar to re-entry applies if you were unlawfully present in the U.S. for one year or more, and then depart the U.S. The U.S. government adds up all the days you were unlawfully present in the U.S., even if they were from different periods or stays (i.e. the aggregate period of unlawful presence).

When Do You Trigger the 3/10 Year Bar?

The 3/10 year bar to re-entry is triggered once you leave the U.S.   This does not mean you should never the U.S. to legalize your immigration status, but you should know there are risks to your departure.

Whenever possible, you should avoid departing the U.S. for consular processing and instead apply for permanent residence within the U.S. [A common example is when a foreign national overstays his authorized period on a visitor visa, but enters into a bona fide marriage to a U.S. citizen and applies for a marriage-based green card within the U.S. Although the 3 year/10 year bar is not triggered unless he leaves the U.S., he would have to file an I-601  [INA § 212(i)] waiver if charged with another inadmissibility ground, i.e. fraud or willful misrepresentation of a material fact to gain immigration benefits by misusing the visitor visa to enter the U.S.]

The unlawful presence waiver is needed only if you are unable to adjust to permanent resident status within the U.S. and trigger the 3/10 year bar by leaving the U.S. for consular processing of the immigrant visa.

Persons in the U.S. who are ineligible to adjust status typically include:

  • undocumented immigrants who entered the United States without being inspected and admitted or paroled (and do not qualify for 245(i) benefits).
  • crew members aboard a ship or airplane who entered the U.S. on a C-1 visa.
  • persons who entered the U.S. with a K-1 fiancé(e) visa, but never married their U.S. citizen petitioner.
  • persons in the U.S. who failed to maintain nonimmigrant status and are not applying for a green card as an immediate relative of a U.S. citizen or as a K-1 beneficiary who married the U.S. citizen petitioner – unless the failure to maintain status was through no fault of their own or for technical reasons.
  • a J-1 or J-2 exchange visitor who is subject to the 2-year foreign residence requirement and has not met or been granted a waiver of this requirement.

When Do You Need an I-601 [INA § 212 (a)(9)(B)(v)] Waiver Due to Unlawful Presence?

You need to file for and obtain an I-601 waiver under section 212(a)(9)(B)(v) of the INA when you seek to immigrate to the U.S. – through consular processing – before the 3/10 year unlawful presence bar expires.  Getting this waiver allows you to lawfully re-enter the U.S. with an immigrant visa or K-visa without waiting outside the U.S. for 3 or 10 years.

There are certain exceptions to the unlawful presence rules. First, any period of unlawful presence prior to April 1, 1997 – the date the law went into effect – does not count toward the 3 year/10 year bars.

In addition, section 212(a)(9)(B)(iii) of the INA excludes the following persons from accruing unlawful presence:

Minors who are under age 18. A minor who is unlawfully present while under age 18 does not accrue any time toward the 3 or 10 year bars. Upon turning 18, he begins to accrue unlawful presence toward the bars.

Asylees. No period of time in which the applicant has a bona fide asylum application counts toward the unlawful presence bars, unless he worked without employment authorization in the U.S. during this period.

Beneficiary of Family Unity Protection (FUP) under section 301 of the Immigration Act of 1990. If the FUP is approved, unlawful presence does not accrue as of the date of filing.  The mere filing of the FUP application does not stop the accrual of unlawful presence.

Qualified battered spouses and children. A Violence Against Women Act (VAWA) self-petitioner who has been battered or subjected to extreme cruelty by a U.S. citizen/permanent resident spouse or parent may be exempted from the 3 year/10 year bar when there was a substantial connection between the abuse and the unlawful presence.

Victims of severe form of trafficking in persons. A trafficking victim does not accrue unlawful presence toward the 3 year/10 year bar if he demonstrates the trafficking was at least once central reason for the unlawful presence.

Tolling for good cause. By statute, foreign nationals do not accrue unlawful presence, for up to 120 days, toward the 3 year bar, while their application for extension of status (EOS) or change of status (COS) request is pending with USCIS. Certain conditions must also be met: (1) they must have been lawfully admitted or paroled into the U.S.; (2) they must have filed a nonfrivolous EOS or COS request before the authorized stay expired; (3) they did not engage in unauthorized employment.

By policy, USCIS has extended this exception to cover the entire period during which an EOS or COS application is pending, and to the 10 year bar.

If USCIS approves the EOS or COS request, it will be backdated to when the authorized stay expired so no unlawful presence accrues. If the request is denied, unlawful presence accrues from the date of denial. But if a timely-filed EOS or COS request is denied because it was found to be frivolous or because the applicant engaged in unauthorized employment, unlawful presence accrues as of the date the authorized stay expires. Or, in the case of an applicant admitted for duration of status (D/S), such as F-1 students, unlawful presence accrues on the date of denial.

Being Out of Status Doesn’t Necessarily Mean You Accrue Unlawful Presence

There are situations where you are out of status (i.e. have no lawful nonimmigrant status), but still have authorized stay and therefore do not accrue unlawful presence. For example:

F-1 students or J-1 students who are admitted for the duration of their stay, and fall out of status, do not begin to accrue unlawful presence toward the 3 year/10 year bar until USCIS or an immigration judge finds they violated their status.

Adjustment of status applicants who fail to maintain nonimmigrant status do not normally accrue unlawful presence while an I-485 application is pending – as long as the I-485 is nonfrivolous and was filed properly prior to the expiration of the nonimmigrant status, and the applicant did not work without authorization.

Persons with Temporary Protected Status (TPS) have authorized stay beginning on the date the TPS application is filed, assuming the application is approved. If the TPS application is denied, unlawful presence begins accruing on the date the previous authorized stay expired.

What are the Limitations of the I-601 [INA § 212(a)(9)(B)(v)] Waiver?

The I-601 waiver under section 212(a)(9)(B)(v) of the INA has several limitations:

It does not waive prior removal orders and multiple illegal entries. The I-601 waiver does not cover the 5-year, 10-year, and 20-year bar due to prior removal orders. It also does not cover permanent bars caused by multiple unlawful entries into the U.S. To overcome such grounds of inadmissibility, you need to qualify for, seek and obtain an I-212 waiver by filing a Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal .

It is not a stand-alone application. The section 212(a)(9)(B)(v) waiver request is normally filed in conjunction with an  immigrant, K-3 or K-1 visa application. The waiver request is submitted after the U.S. Consulate determines you are inadmissible due to the unlawful presence bar. The waiver, by itself, confers no immigration benefits, such as permanent residence or employment authorization.

Who Qualifies for the I-601 [INA § 212(a)(9)(B)(v)] Waiver?

You qualify for the I-601 [§ 212(a)(9)(B)(v)] waiver if you are the spouse or son or daughter of a U.S. citizen or permanent resident (or the fiance(e) of a U.S. citizen K-visa petitioner) who will suffer extreme hardship if you are not admitted to the U.S. Being a parent of a U.S. citizen or permanent resident child does not make you eligible for the unlawful presence waiver.

If you have no qualifying relative, i.e. U.S. citizen or permanent resident spouse or parent, to meet the extreme hardship requirement, you are ineligible for the I-601 immigrant waiver.

(NOTE TO NONIMMIGRANTS: A 212(d)(3)(A) nonimmigrant waiver for unlawful presence, however, is available even if you have no qualifying relative. Whether you qualify for the nonimmigrant visa itself is a separate issue.)

Being eligible for the I-601 waiver does not necessarily mean you will get it.  As with other waivers available under the INA, the §212(a)(9)(B)(v) waiver is granted in the exercise of discretion. In addition to meeting the statutory requirements, you must present evidence showing the positive factors outweigh the negative factors in their case. Even if you eligible for the waiver, the agency may still deny the request as a matter of discretion.

Where Do You File An I-601 [INA § 212(a)(9)(B)(v)]  Waiver Application? 

The §212(a)(9)(B)(v) waiver request is filed on a Form I-601.  The current filing addresses are as follows:

A VAWA self-petitioner seeking an immigrant visa must file the waiver request with the USCIS Vermont Service Center.

An immigrant visa or nonimmigrant K visa applicant must file the waiver request with the USCIS Phoenix Lockbox.

Because direct filing addresses for the I-601 are subject to change, you must verify this information on the USCIS website.

NOTE:  If the unlawful presence bar is your only ground of inadmissibility and you are applying for an immigrant visa, it’s better to file for an I-601A, Provisional Unlawful Presence Waiver, before you leave the U.S., instead of the regular I-601 waiver. You need to know the key differences between the I-601 waiver and I-601A waiver to decide which is more appropriate.

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Obtaining an I-601 unlawful presence waiver requires more than just submitting the form and documents listed in the instructions. You must also explain to USCIS how the documentary evidence shows you qualify for the waiver and deserve to get it. Experienced counsel can help you prepare a legal brief and present a strong, approvable waiver application.

For more information on what to submit with your application and why seeking counsel helps, read our related article, What should you do get an I-601 Waiver for unlawful presence?

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

SUBSCRIBE           CONTACT

Photo by: Elliott Brown