Provisional Unlawful Presence Waiver – FORM I-601A
Under the Immigration and Nationality Act Section 212 (a)(9)(B) certain aliens who are seeking admission to the United States maybe be inadmissible if they accumulated unlawful presence (present in the U.S. without being admitted or paroled or stayed past the authorized period of stay). An alien is inadmissible who:
(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States and again seeks admission within 3 years of the date of such alien’s departure or removal, or
(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States is inadmissible.
There are exceptions for this ground of inadmissibility, but if an individual does not qualify for one of the exceptions they are generally not inadmissible unless this ground of inadmissibility is waived.
A request can be made to have unlawful presence ground of inadmissibility provisionally waived prior to a person’s intended departure from the United States. For example, a person who has been residing unlawfully in the United States for more than one year and wants to depart the U.S. to attend an interview at a U.S. Consulate office to obtain a green card would generally be inadmissible for 10 years from the date of departure from the U.S. The Provisional Unlawful Presence Waiver allows you to request that the unlawful presence ground of inadmissibility be waived prior to your departure from the United States.
You may request a provisional unlawful presence waiver (Form I-601A) if you:
- Are physically present in the United States;
- Are at least 17 years of age at the time of filing;
- Have an immigrant visa case pending with U.S. Department of State and are statutorily eligible for an immigrant visa (immediate relative to U.S. citizen visa, family preference category visa, employment-based immigrants or Diversity Visa selectees);
- Can show that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen or Legal Permanent Resident spouse or parent (U.S. citizen and LPR children are not qualifying relatives); and
Are not otherwise inadmissible to the United States on other grounds (e.g. national safety, deportation, criminal).
- If the provisional waiver is granted before you leave the United States for the consular interview, it does not guarantee that you will be granted admission back into the Unites States. The unlawful presence grounds of inadmissibility may have been waived, but the consular officer may determine that you are inadmissible on other grounds such as alien smuggling or prior immigration violations.
Waiver of Grounds of Inadmissibility – FORM I-601
Immigration and Nationality Act Section 212(a) lists several classes of aliens ineligible to receive visas and ineligible for admission. An individual who is inadmissible to the United States can file an application (Form I-601) to seek a waiver of certain grounds of inadmissibility. The Form I-601 is available to waive the grounds of inadmissibility listed below:
- Health-related grounds of inadmissibility (INA section 212(a)(1))
- Certain criminal grounds of inadmissibility (INA section 212(a)(2))
- Immigration fraud and misrepresentation (INA section 212(a)(6)(c))
- Immigrant membership in totalitarian party (INA section 212(a)(3))
- Alien smuggler (INA section 212(a)(6)(E))
- Being subject to civil penalty (INA section 212(a)(6)(F))
- The 3-year or 10-year bar due to previous unlawful presence in the United States (INA section 212(a)(9)(B))
212(h) Waiver for Criminal Activity
A waiver is available for certain criminal activity if it falls into one of the offenses listed below:
Crimes involving moral turpitude (CIMT);
- A single offense for simple possession or being under the influence of 30 grams or less of marijuana;
- Two or more convictions, other than purely political ones, for which the aggerate sentence imposed was a total of five years or more;
- Engaging in Prostitution;
- Certain aliens involved in serious criminal activity who have asserted immunity from prosecution.
To be eligible to request a 212(h) waiver you must establish one of the following:
- You are inadmissible because of your participation in prostitution, but you have been rehabilitated and your admission to the United States will not be contrary to the national welfare or safety;
- At least 15 years have passed since the activity or event that makes you inadmissible, you have been rehabilitated, and your admission to the United States will not be contrary to the national welfare or safety;
- Your U.S. citizen or lawful permanent resident spouse, son, daughter, or parent would experience extreme hardship if you were denied admission; or
- You are an approved VAWA self-petitioner
If the offense to be waived is a violent or dangerous crime, the application may not approve the waiver unless there is an extraordinary circumstance or if denying your admission would cause exceptional and extremely unusual hardship. 212(h) waiver is granted as a matter of discretion.
212(i) Waiver for Fraud or Misrepresentation
A waiver is available to an individual seeking admission to the United States who has been accused of trying to procure an immigration benefit by fraud or misrepresentation of a material fact under INA section 212(a)(6)(C)(i)).
To be eligible to request a 212(i) waiver you must establish the following:
- Your U.S. citizen, or lawful permanent resident spouse or parent or the K visa petitioner would experience extreme hardship if you were denied admission; or
- You are a VAWA self-petitioner and would experience extreme hardship if you were denied admission.
The waiver application must show that a favorable exercise of discretion is warranted by balancing whether the applicant’s positive factors outweigh the negative factors. Factors used to determine whether favorable exercise of discretion. The factors used are family ties, conditions in country of applicant, conditions of health, financial impact of departure from the U.S and the nature, seriousness, and underlying circumstances of the fraud or willful misrepresentation.
212(d)(11) Waiver of Alien Smuggling
A waiver may be available for an individual seeking admission to the United States who has been accused of alien smuggling under INA §212(a)(6)(E). Alien snuggling has been interpreted to include encouraged, induced, assisted, abetted, or aided anyone in any way and at any time to enter the United States unlawfully.
To be eligible to request an alien smuggling waiver you must establish the following:
- The individual you aided to enter the U.S. was your spouse, parent, son, or daughter (and no other individual), and;
You are either:
- A lawful permanent residence who temporarily proceeded abroad voluntarily, not under an order of removal, and who is otherwise admissible to the United States; OR
- A person seeking admission or adjustment of status through an immediate relative immigrant visa, a family-sponsored immigrant visa based on the first, second, or third preference, (but not on the fourth preference), or as the fiancé(e) of a U.S. citizen or the fiancé(e)’s child.
The alien smuggling waiver can only be approved if approval of the waiver would be to ensure humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.
212(a)(9)(A)(iii) and 212(a)(9)(C)(ii) Application for Permission to Reapply for Admission into the United States After Deportation or Removal or Unlawful Reentry- FORM I-212
An individual seeking admission into the United States may be inadmissible due to prior immigration violations;
- Under INA §212(a)(9)(A) an individual is inadmissible who has been expeditiously removed at the border within the past five years or was ordered removed or deported within the past 10 years or were removed more than once within the past 20 years.
- Under INA §212(a)(9)(C) an individual is inadmissible who has been 1) unlawfully present in the U.S. for more than one year OR 2) who has been ordered removed and who enters or attempts to re-enter the U.S. without being admitted.
If you are inadmissible under either INA §212(a)(9)(A) you may be able to apply for permission to reapply for admission immediately after departure or prior to departure. If you have been ordered removed and are outside of the U.S. you must file an application for permission to reapply for admission (Form I-212) to the U.S. before you can lawfully return to the United States. If you have been ordered removed, but still have not left the United States and will be applying for an immigrant visa abroad, you may file your I-212 application for consent to reapply before you leave the United States under the removal order.
If you are inadmissible under INA §212(a)(9)(C) you cannot file an application for consent to reapply until you have left the United States and have remained outside the country for at least 10 years since your last departure. After 10 years, you must request consent to reapply for admission before you can lawfully return to the United States.
The I-212 application for permission to reapply for admission is granted as a matter of pure discretion. Some of the factors that are considered are basis for deportation, length of residence in the U.S., moral character of individual, hardship to individual or family, need for individual’s services in the United States.