If you are inadmissible (or ineligible) to immigrate to the United States with an immigrant visa or adjust status to a permanent resident, you may be eligible for a waiver to “waive” that ground of inadmissibility and therefore assist you in receiving lawful permanent residency or green card status.
There are many different grounds of inadmissibility, some of which are waivable and some that aren’t. If you are inadmissible for a certain reason and a waiver IS available, chances are that you would file Form I-601, Application for Waiver of Grounds of Inadmissibility, to waive that ground of inadmissibility. In certain circumstances however, you may qualify under form I-601A, Application for Provisional Unlawful Presence Waiver.
Form I-601, Application for Waiver of Grounds of Inadmissibility
An individual who is ineligible to be admitted to the United States as an immigrant or to adjust status in the United States, and certain nonimmigrant applicants who are inadmissible, must file this application to seek a waiver of certain grounds of inadmissibility.
Whether you are eligible for a waiver depends on the immigration benefit you are seeking and the reason for your inadmissibility. Grounds of inadmissibility include:
- Health-related grounds of inadmissibility
- Certain Criminal Grounds of Inadmissibility or Immigration Fraud or Misrepresentation
- Inadmissibility Because of Immigrant Membership in a Totalitarian Party
- Inadmissibility Because of Immigrant Smuggling
- Inadmissibility Because of the 3-Year or 10-Year Unlawful Presence Bar
- Aliens Previously Removed (NACARA and HRIFA)
- Unlawfully Present After Previous Immigration Violations (NACARA, HRIFA, and VAWA)
Form I-601A, Application for Provisional Unlawful Presence Waiver
The I-601A or the provisional waiver only waives one ground of inadmissibility: unlawful presence. If you have been unlawfully present in the United States for more than 6 months but less than a year, or unlawfully present for more than a year and you leave the U.S., you will trigger either a 3-year or 10-year bar preventing you from returning to the U.S. and applying for permanent residency. The unlawful presence ground of inadmissibility is the reason that many immigrants already living in the United States may not leave the country to apply for an immigrant visa or lawful permanent residency, because they cannot risk leaving their families for 3 or 10 years while they wait out their bar.
In 2013, the provisional waiver was created, and then expanded in 2016 so that those who needed to consular process to apply for residency were able. Instead of leaving the country and then filing the I-601 Waiver of Grounds of Inadmissibility for unlawful presence and waiting for it to process while you were out of the country, which could take upwards of a year, the new process allows an applicant to apply provisionallyfor the waiver while still in the U.S., thus minimizing the risk and shortening the time of family separation. If the waiver is then approved, the applicant can travel to his or her home country to proceed with consular processing and obtain an immigrant visa.
What is the difference?
The most important distinction between the I-601 waiver and the I-601A provisional waiver is that the I-601A ONLYwaives unlawful presence. When filing form I-601A, unlawful presence has to be the only ground of inadmissibility against an applicant when pursuing consular processing. If an applicant has other issues affecting their inadmissibility and may need other waivers, due to a criminal conviction or having committed immigration fraud, they would not be eligible for this process through the provisional waiver.
In recent years, with consular processing getting stricter and more difficult, an applicant may think their only issue is their unlawful presence. They apply for the I-601A waiver, and after it is approved, they travel to their home country. Then, attending their visa interview at the consulate, another ground of inadmissibility is found. At that point, the I-601A approval would be rescinded because it’s not the sole ground of inadmissibility. The applicant can then file the I-601 waiver to waive THAT ground of inadmissibility as well as address their unlawful presence. It would delay their return to the United States, but as the grounds for the two waivers are identical in most scenarios, having the I-601A approved, even if it is later rescinded, is a good indication that the I-601 waiver will be approved.
Waiver cases can be very complicated and the burden is on the applicant to demonstrate that they meet all of the qualifications. You should contact an immigration attorney to discuss the various grounds of inadmissibility and if you are a candidate for an I-601 or I-601A waiver to ensure proper filing of your case and to put yourself in the best position to obtain permanent residency.