601A – Unlawful Provisional Waiver

You entered the United States by illegally crossing the border (no visa).  You overstayed for more than 180 days.  You marry the love of your life who is either a U.S. Citizen or permanent resident and your I-130 petition is approved.  Now what?  Unlike those immigrants that first entered the United States through legal means and were inspected (for example a visitor visa, student visa, etc.), you cannot simply file to adjust your status and obtain a green card here in America.

Instead, the immigration process requires that you must go back to your country and obtain a visa there.  That can be a frightening thought.  Many immigrants flee their home because of corruption and/or fear from the government.  The thought of getting stuck overseas and away from your loved ones can prevent many people from taking the next step and applying for their green card – but there is hope.  It was introduced under the Obama Administration in 2013 and it is known as the 601-A Unlawful Provisional Waiver.

The Unlawful Provisional Waiver, once approved, allows you to re-enter the Untied States without having to face the 1, 3 or 10 year bar for unlawful presence.  Prior to this program, a person had to go back to their country and wait until the 1, 3 or 10 year period was over before they could re-enter the United States.  Today, if done correctly, an Unlawful Provisional Waiver ensures that you can come right back to your family.

The requirements of the Unlawful Provisional Waiver are as follows:

(1) You must be 17 years or older;

(2) Physically present in the United States to file your application and provide biometrics;

(3) Have one of the following approved petitions:

i.  I-130 Petition for Alien Relative;

ii.  I-140 Petition for Alien Worker;

iii. I-360 Petition for Amerasian, Widower or Special Immigrant;

iv.  You are a Diversity Visa Program Selectee; or

v.  You are the spouse or child of the main beneficiary in any of the above petitions;

            (4) You have paid your immigrant processing visa fee to the National Visa Center;

(5) Successfully demonstrate that any refusal of admission back into the United States based solely on your overstay will cause extreme hardship to either a spouse or parent that is a U.S. Citizen or a permanent resident;

(6) There is no other factor making you inadmissible into the United States;

(7) You are not in removal proceedings.  If you are, your case must be administratively closed.  If you already have a removal, deportation or exclusion order then you must file and have an approved 212 waiver before you can file for Unlawful Presence Waiver.  There will be another article about this.

Simply arguing that being separated from your family for years is not enough to prove extreme hardship.  Many applicants make that mistake and without the help of an experienced attorney, your unlawful waiver application may be denied.  What is worse is you cannot even appeal this decision.  You have to wait 2 years before you can reapply for the waiver.  You will have to continue living as an illegal immigrant in the United States without any protections or benefits.

Extreme Hardship can be broken down into 5 categories: (1) Health; (2) Financial Considerations;     (3) Education; (4) Personal Considerations and (5) Special Factors.  You can have one or more of these categories apply to you but make sure they are supported by expert opinions and evidence.  For example, if you have business ties in the United States and your qualifying relative is dependent on this income, you must show proof of the business, proof of your expenses, and proof that you are paying/supporting your qualifying relative.

Keep in mind that a qualifying relative cannot be your child.  You cannot obtain an unlawful provisional waiver by arguing your child will suffer from extreme hardship.  Instead, you have to take that child’s hardship and link it to either your spouse or parent.  For example, assume a child suffers from autism.  An argument can be made that if you have to depart and remain in another country for many years, your husband or wife will be responsible for raising a child with very specific everyday and educational needs which will create an extreme hardship on your spouse.

On a final note – it is extremely important that your application argues 2 important points.  Not only do you prove that your qualifying relative will face extreme hardship if you depart the United States for a long period of time but you must also argue that it will be an extreme hardship for the qualifying relative if they move with you.  A lot of applications get rejected because the second argument was never made.

The Unlawful Provisional Waiver is very handy but needs to prepared and submitted by an experienced attorney.  Since each situation is unique, there is no one way as to how you will present your hardship case.  I hope this article gives you a general background on Unlawful Provisional Waivers.  We will be posting other articles that get into the specifics of each hardship.

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