A Simplified Guide to the Waiver of Unlawful Presence
Do you need to leave the U.S. to process your immigrant visa and are unsure how to proceed? If you did not make a legal entry into the US, even if you are married to a US citizen, you may still need to exit the country to pursue your legal resident status. If you have resided unlawfully for over six months, you may need a waiver of your unlawful presence. To apply for a waiver of unlawful presence before you exit the US, you will need to use form I-601A. Here is a rundown of the main things to know about the I-601A waiver which could be a potential solution for you.
What does it mean to accrue unlawful presence, and how does this affect one’s ability to return to the U.S. once leaving?
You accrue unlawful presence when you enter the United States without being admitted or paroled, or remaining in the US after your authorized stay has expired. If more than 180 days of time has accrued and you subsequently depart the U.S., you must stay outside of the United States for at least 3 years before being eligible for a visa to return. In some instances, you can apply for a waiver to return earlier. If more than 365 days of time has accrued and you need to leave the U.S., you must stay outside of the United States for at least 10 years before being eligible for a visa to return. Again, it may be possible to get a waiver in this circumstance. The point of the unlawful waiver is to waive the 3 or 10 year bar of inadmissibility and allow one to apply for a visa to return to the U.S. without having to stay outside of the U.S for 3 or 10 years.
What are the elements of an I-601A Waiver?
In order to qualify for an I-601A waiver, the applicant must first have a qualifying relative. The qualifying relative is a spouse or parent who is either a citizen in the U.S. or a lawful permanent resident. You must then show that if the applicant were to separate from the qualifying relative or if the qualifying relative had to relocate to live with the applicant abroad, that it would cause the qualifying relative extreme hardship. Although extreme hardship is subjective, it must be hardship that is clearly above and beyond the hardship that a normal couple would suffer due to separation. Some examples of the types of hardship that you would have to prove in your waiver application are: Showing a U.S citizen’s vulnerability to psychological problems, difficulty for the U.S citizen to care for young children alone, and poor living conditions. Another factor to consider is whether there is a high crime rate in the foreign national’s home country or other dangers to relocating to the foreign country. The hardships that the qualifying relative of the applicant faces can be considered in the aggregate. Once the bar of extreme hardship is met, the immigration officer reviewing the application will weigh the positive equities vs the negative factors of the applicant. The officer reviewing the application will then decide whether to approve the application or reject it.
What’s Next?
Once the waiver application is approved, USCIS will send the foreign national an approval notice. The applicant may then continue with the visa process to set up an appointment at the U.S. consulate abroad. Once the appointment is confirmed, the applicant can leave the U.S. and usually return relatively quickly (within one to two weeks). If the consulate finds there are other reasons to deny the applicant, such as the applicant has committed fraud or has brought other people to the U.S. unlawfully, the consulate will require another waiver to be submitted while the applicant is abroad to waive the Inadmissibility grounds for those issues.
DISCLAIMER: This Article is for informational purposes only and may not be used in the place of legal advice.