I-601 and I601A Waivers of Inadmissibility- A Rough Outline

Hypothetical: Bill entered the United States illegally in 2002. He later met Daisy, a citizen of the United States, and the two of them fell in love, got married, and have two children together. Bill is now very nervous about his immigration status. He has a lot to lose should he be removed from the United States. Therefore, Daisy wants to petition for Bill’s status as a lawful permanent resident (green card holder). The first step Daisy takes is to file an I-130 Petition for Alien Relative. The purpose of this is for the government to classify Bill as Daisy’s husband. Bill and Daisy include with their petition copies of their children’s birth certificates and other bills and joint expenses to prove that their marriage is valid and not only entered into for purposes of immigration.

I-130 Petitions cost $420 and take about six months, give or take, to be processed. They are usually decided without an interview and the approval is received in the mail.

After that, the I-130 approval will be sent to the National Visa Center (NVC). The NVC will send them a bill for $445 (part a visa fee, part for fingerprinting). Once this is paid, the next step, after filing some additional papers like an affidavit of support, copies of the passport, etc., would be to get an interview at the United States Consulate Office in Bill’s home country.

But wait, there is a problem! Bill isn’t going to continue that far just yet.

Because Bill has been in the United States illegally for over one year after 1997, once he leaves the country he will be barred from entering again for ten years. In order to avoid this, Bill can apply for a waiver of this penalty. (See Immigration and Nationality Act Section 212(a)(9)(B).

Waivers of this penalty are given to applicants who can demonstrate to the government that their qualifying relative would suffer an “extreme hardship” should their loved one be denied admission to the United States. (See Immigration and Nationality Act Section 212(a)(9)(B)(v).

For years, it has been possible to go to the interview and apply at the consulate for a waiver of this penelaty. It is still possible to do so after having been denied at an initial consulate interview by filing form I-601. Form I-601 will allow an applicant for admission to the United States to apply for a waiver of many types of grounds for inadmissibility, including illegal presence, criminal grounds, alien smuggling, communicable diseases, etc. However, each of the aforementioned has its own rules and burden of proof. The downside of filing a waiver with Form I-601, is that the applicant must be outside of the United States when they file it. They can be gone, separated from their family for about a year while all of the paperwork is processed and a decision made.

Beginning in March of 2013, the Department of Homeland Security commenced a new “provisional waiver” called an I-601A. This I-601A is available exclusively to spouses of US citizens and exclusively for a waiver of inadmissibility due to illegal presence in the United States.

Therefore, returning to our hypothetical, Bill is married to Daisy, a United States citizen, therefore, he can file for a provisional waiver of his illegal presence before leaving the country. He can wait for a decision on the waiver with his family in the United States and only go to his home country for a short week-long visit to the consulate before returning legally.

Form I-601A takes roughly six months to be processed. The burden of proof is the same as a I-601 in showing that the United States citizen spouse would suffer “extreme hardship” if they were to move with the applicant to their home country or if they were to remain in the United States without their spouse.

In our hypothetical, Bill’s waiver, Form I-601A is approved. He sent in his supplementary paperwork, received an interview date at the foreign consulate, went to the interview, had a medical examination, no surprises occurred (like unknown criminal problems or finding turburculosis) and so Bill received a packet he used to enter the United States legally and become a permanent resident.

Since Bill is married to a United States citizen, he may apply for United States Citizenship three years after becoming a permanent resident. Otherwise, new permanent residents must wait five years.

This is a brief summary only of the process one might take in obtaining legal status in the United States after having and remained illegally. Immigration laws are extremely complicated and one should certainly seek the guidance of an experienced attorney when trying to navigate this difficult system. However, I hope the above serves as a rough outline of what one might see while going through this process.