I-601 and I-601A Waivers to Overcome 3/10 Bars to Admission

The Illegal Immigration and Reform and Immigrant Responsibility Act (IIRIRA) enacted in September 1996 provides that an alien who resides unlawfully in the United States for 180 days or more but less than a year after April 1, 1997, is inadmissible for 3 years if he/she subsequently leaves the USA and reenter legally or attempts to reenter legally. If an alien who has resided unlawfully in the United States for one year or more after April 1, 1997, he is inadmissible for 10 years if he subsequently leaves the USA and reenters legally or attempts to reenter legally.

If an foreign national is pursuing an immigrant visa at the consulate and is subject to the 3- or 10-year bar, the applicant will need to have an I-601 waiver granted to clear the bar. Typically it can take anywhere from 6-12 months or longer to get an approval on the I-601 waiver. During this time the applicant must remain outside the USA until the immigrant visa process is completed.

As of March 4, 2013, certain immigrant visa applicants, subject to the 3 or 10 year bar, who are spouses, children and parents of U.S. citizens can apply for an I-601A provisional unlawful presence wavier in the USA. This has now been extended to lawful permanent residents as of November 20, 2014 pursuant to the new Obama initiative. The provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver and wait for the decision in the United States rather than having to wait in their home country. If the I-601A waiver is approved then the applicant can proceed with the interview at the consulate. In order to get the I601A provisional waiver approved, the applicant will have to demonstrate that either a U.S. citizen spouse or parent will suffer extreme hardship if the applicant is not allowed to remain in the USA.

The I-601A waiver only applies to unlawful presence issues. If the foreign national also needs a waiver because of a criminal conviction that is considered to be a crime involving moral turpitude such as stealing, then I-601A waiver does not apply and the foreign national will instead have to return to their home country and apply for all waivers there if they chose to leave the country. The foreign national can apply for an I-601 waiver to overcome both unlawful presence and criminal conviction, depending of course on the type of conviction. Not all criminal convictions are covered under the I-601 waiver. The foreign national with a criminal history should always consult an experienced immigration attorney before leaving the USA to pursue an immigrant visa at the consulate or embassy in their home country
Since the foreign national may need an additional waiver, he or she will not be eligible for the I-601A waiver in the United States, and instead will have to make the decision to return to their home country and apply for all waivers that are needed.

Here's How We Can Help You:

• We will review eligibility for the immigration benefit and identify any potential legal issues that may affect your eligibility.
• We will help you gather the necessary documents in support of all relevant applications and petitions
• We will prepare and submit all relevant applications and petitions with the appropriate
• U.S. Government office and ensure the submission of the correct filing fees
• We will handle all communication with the appropriate U.S. Government office up until the interview is scheduled

The Law Offices of Raul Ray will be happy to consult with you to determine whether you are eligible to apply for the I-601A waiver in the USA or if you have to go through the regular I-601 waiver process while remaining outside the USA. You can contact our office at (408) 279-5793.