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When is an I-601A Waiver Needed?

When a person has unlawful presence in the US, he or she often will need a 601 or 601A waiver. What is unlawful presence? The Immigration Nationality Act defines three categories of unlawful presence that all begin to count after April 1, 1997. First, if a person has unlawfully entered the USA and stayed here for more than 180 days, but less than 1 year, they would be unable to enter the US for 3 years. If a person enters unlawfully and stays here for more than 1 year, they are unable to re-enter the USA for more than 10 year. Lastly, if a person enters the USA for more than 1 year, or gets deported, and then unlawfully re-enters, they are unable to enter the USA for 10 years. The last category, however, does not allow for a waiver. The first two, do. It is important to note, that unlawful presence is not triggered until you exit the United States.

Overstaying on an Immigrant Visa

Some people enter the US with a visa and overstay. Usually if they never leave the US, this shouldn’t be a problem. However, if they do leave, they could be forced to wait outside the US for several years. If it does become a problem, they need an unlawful presence waiver.

Enterring the uS undocumented

If you enter the US without legal documents, you may need a 601A waiver. There are exceptions to this, but they are narrow. For instance, if you have a child in the military, or obtained parole, it may not be necessary for you to get the 601 or 601A waiver.

To qualify for a 601A waiver, you need to have a qualifying relative. A qualifying relative can be a spouse or parent, who is a citizen or resident of the United States. Under the Immigration laws, children are not qualifying relatives for the waiver. In addition, in order to be granted the waiver, extreme hardship must be proven. Extreme hardship can be proven in one of two ways. First, the qualifying relative can prove that if they relocate with their spouse to their country of origin, the qualifying relative would suffer extreme hardship. Secondly, the qualifying relative can prove that if they stay in the USA and their spouse is forced to their country of origin, the qualifying relative would suffer extreme hardship.

Waiver Legal Resources

1. USCIS 601A Form

2. USCIS Provisional Waiver

3. Federal Regulations

4. ILRC 601A Information

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