Getting a green card through marriage or parents – I-601A provisional waiver

Since 2016, more undocumented immigrants are able to get their green cards through marriage than ever before.

The expanded I-601A waiver means that many applicants who previously could not qualify now have this route open to them. Before 2016 only adult (over age 21) children or spouses of US citizens could apply.

Since then it has opened up to include :  spouses and adult children of U.S. citizens and lawful permanent residents.

It used to be that if you were a border crosser, you could get a green card in the US after marrying an American citizen, as long as you paid a fine. That changed on April 30, 2001 when section 245(i) of the Immigration Act was removed from the law, after which undocumented immigrants had to remain undocumented –even if married to US citizens.

We waited for over a decade for a solution, and finally, in 2013, I 601-A Waivers emerged.

WHAT IS A I-601A PROVISIONAL WAIVER?

The I-601A Waiver allows border crossers (and other immigrants unable to seek green cards in the US) to apply to Immigration on the grounds of extreme hardship to their US Citizen/Lawful Resident Spouses or Parents.

The 601A seeks to make an illegal immigrant admissible to the US.

Under a change to the law that began on April 30, 1997, anyone found having more than 180 days of “unlawful presence” in the US was subject to a THREE YEAR BAR on readmission starting from the date of departure. Anyone who accrued one year of unlawful presence has a TEN YEAR BAR (frequently called Castigo de 10 Años in Spanish).

This problem meant that if an immigrant had been in the country illegally but had to go back home for any reason, they would not be able to come back to the US for 3 to 10 years – if at all.

This dilemma left immigrants either stranded in the United States for fear of the bar, or stranded in home countries.

HOW CAN A I-601A WAIVER HELP ME GET A GREEN CARD?

If a I-601A Waiver is granted, the undocumented person married to the US citizen goes back to his home country, has an interview at a US Embassy and quickly re-enters the US to return to his spouse and family, approved for a green card! (Certain other conditions apply)

An important rule: The border crosser or undocumented immigrant must leave the US to obtain an immigrant visa abroad when ineligible to apply for a green card in the US.

Before the I-601A waiver, an application to waive this bar could not be filed until after an applicant attended an immigrant visa interview abroad. The alien had to be separated from his family for years, during adjudication of the waiver. This waiver has been a life saver for many families we represent.

HOW LONG WILL IT TAKE TO PROCESS MY I-601A WAIVER

The total amount of time can be 8 months to a year, to process an I-601A waiver application. Generally USCIS and DOS try to coordinate to have it processed in time to make sure that the timing of the approval of a provisional unlawful presence waiver application is close to the time of the scheduled immigrant visa interview abroad. DOS schedules the applicant for an immigrant visa interview after approval of the provisional unlawful presence waiver and the applicant’s submission of the required immigrant visa processing documents to DOS. While that might seem like a lot of time, it is a vast improvement over the 3-10 years an immigrant was previously separated from his or her family.

WHAT IS “EXTREME HARDSHIP?”

This waiver is given on grounds of extreme hardship. Factors to be considered include, but are not limited to:

  • Family ties in the United States of the US Citizen/Lawful Resident Spouse or Parent
  • Health of the US Citizen/Lawful Resident Spouse or Parent
  • Length of residence in the United States of the US Citizen/Lawful Resident Spouse or Parent
  • Conditions in the county to which the Immigrant would be returned
  • Married Couple’s financial status – business/economic circumstances
  • Applicant’s immigration history

HOW MUCH DOES AN I-601A WAIVER COST?

You need to pay for the biometric ($85) and filling fees ($630) for your I-601A provisional waiver application. In the case of a withdrawn Form I-601A, USCIS will not refund the filling fees because USCIS has already undertaken steps to adjudicate the case.

WHAT HAPPENS IF MY I-601A WAIVER IS DENIED?

There are a few options for you if your waiver is denied.

If your I-601A waiver request is denied or withdrawn, you may file a new Form I-601A, in accordance with the form instruction, with the required fees and any additional documentation that you believe might establish your eligibility for the waiver.

Also, you can attend your consular interview, and then apply for a traditional waiver and wait for the waiver’s adjudication while outside of the U.S. For a traditional waiver process, you may file a Form I-601, Application for Waiver of Grounds of Inadmissibility. However, be aware that if this waiver is denied, you risk a lengthy separation from your family, as you will be barred from reentering the U.S. for three or ten years. 

BORDER CROSSERS AND OTHER UNDOCUMENTED ARE GETTING GREEN CARDS WITH 601A WAIVERS REGULARLY OVER THE LAST SIX YEARS. THIS IS A GREAT OPPORTUNITY.

With newly expanded guidelines for the 601-A waiver, more people than every before can apply. 

My observation is that the denials are frequently based on poor preparation by inexperienced lawyers or folks trying to “do it themselves.”

If you are an undocumented immigrant and wish to remain in the US with your US citizen spouse and family, please contact us: we can help!

Want more information? Watch my You Tube video on 601A Waivers and Marriage Based Green Cards.

We’ve already won 601A waivers for clients from: 

Argentina, Brazil, Colombia, Costa Rica, Ecuador,

El Salvador, Guatemala, Honduras, Macedonia,

Mexico, Nepal, Peru, Poland, and Slovakia

and we are doing more all the time!

 

Written by: Harlan York

Immigration Attorney Harlan York is Former Chair, Immigration Section, NJ State Bar Association and Former Co-Chair, NY State Bar Association CFLS Immigration Committee. Mr. York appeared on National Television on CBS This Morning with Charlie Rose and Primer Impacto on Univision, as well as Telemundo, NBC, and PBS. He was honored as First Ever Immigration Lawyer of The Year in NJ by Best Lawyers.

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