Since 2013, many individuals have taken advantage of the I-601A provisional waiver. This waiver can be used in certain circumstances so that family members do not have to spend extended periods of time outside of the United States while waiting for their visa and their visa interview. if the immigrant has a qualifying relative (a spouse or parent who is a United States citizen or a legal permanent resident) and someone that filed an I-130 family petition for the immigrant, then after that I-130 is approved, they can file this I-601A waiver in order to forgive unlawful presence inside of the United States.
Unlawful Presence: An immigrant has unlawful presence when they are in the United States for a period of time without permission. Typically this means they do not have a visa, or the time they were allowed to be in the US has expired. When an individual has 180 days (but less than one year) of unlawful presence, they are barred from obtaining a visa for 3 years from the time they leave the US. When an individual has one year or more of unlawful presence, they are barred from obtaining a visa for 10 years from the time they leave the US.
The I-601A waiver can forgive the bar associated with unlawful presence. The I-601A can forgive ONLY the issue of unlawful presence. It does not forgive any other ground of inadmissibility such as a criminal history, smuggling (even family members), fraud or other immigration violations. It is very important to identify all possible issues with an immigration case before going forward with the I-601A as it will be unusable if there is any other ground of inadmissibility. In that case, the immigrant will need to go forward with their case, go to the interview and then file any other waivers such as the I-601 to forgive all other forgiveable grounds of inadmissibility.
The I-601A waiver is a waiver that is filed here in the United States. It takes approximately four to six months to be approved. Once this waiver is approved, the Immigrant can go forward with the National Visa Center, Consular Processing and Visa Interview. That visa interview will take place outside of the United States in the immigrant’s country of origin.
The immigrant must show that the US Citizen or Legal Permanent Resident qualifying relative will suffer an extreme hardship if the immigrant cannot return to live legally in the US.
To win the waiver case, the immigrant must show that the US Citizen or Legal Permanent Resident qualifying relative will suffer an extreme hardship if the immigrant cannot return to live legally in the US. The hardship must be to the qualifying relative, not the immigrant. It is helpful to consider emotional hardship, physical hardship, medical hardship, employment hardship, educational hardship, hardship with regards to safety, family hardship if there are children or child custody orders to follow, and any other relevant hardship that will be suffered.
At times, USCIS will state that there is hardship, but that it is not extreme enough. They may send what is called a “Request for Evidence” and you will have one last chance to respond with proof that the hardship in your case IS extreme. It will be important to show USCIS that the hardship in your case is more than the hardship that would typically be associated with a long-term separation. It has to be more than that.
Our law firm has helped many individuals obtain approval for their waiver cases and we have experience showing what is extreme hardship. If you would like help with your case, please reach out to us at (616) 396-9418.
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