The spouses, sons and daughters of U.S. citizens who have accrued more than 180 days of “unlawful presence” in the United States, and have to leave the country as part of the legal immigration process, are barred from returning to their families for as long as 3 or 10 years. But they might be eligible to receive a “waiver” to allow them to return to their families by providing evidence that their U.S. citizen family member would face “extreme hardship” as a result of the separation. The way to get that waiver is to file, with supporting evidence, a Form I-601A.

Prior to March 2013, U.S. citizens who petition for their spouses and children to become legal immigrants to the United States must first petition for a visa, and in some circumstances—if the spouse or child has accrued more than 180 days of unlawful presence in the U.S.—that spouse or child must then also apply for a “waiver of grounds of inadmissibility” (by filing a Form I-601 which was in effect prior to March 2013) in order to have his or her visa application processed. Applicants can only file for a waiver after having been determined “inadmissible” by the U.S. consular officer and must wait abroad for a decision. This caused a lengthy separation for families.

Under the current policy which became effective in March 2013, the spouse or child would be able to apply for a waiver with USCIS within the United States and receive a provisional decision on that waiver before departing the U.S. for consular processing of their immigrant visa applications. After the provisional waiver is granted and if the Department of State finds the individual otherwise eligible for the immigrant visa, the consular officer would then issue the visa, allowing the individual to immigrate to the U.S.

The policy objective of this process change is to alleviate extreme hardship suffered by U.S. citizens when their immediate family members are abroad for a long time. The focus on U.S. citizens and their immediate relatives is consistent with Congress’ prioritization in the immigration laws of family unification. This change meets the goals of both improving efficiency and reducing the length of time that American families are unnecessarily separated.

The immediate relative of a U.S. Citizen (spouse or child) would apply for a visa, and as part of that process would file a Form I-601A waiver. USCIS would grant a provisional waiver before the applicant departs the U.S. for consular processing of their immigrant visa applications. The provisional waiver would not take effect until the individual departs from the United States and triggers the covered ground of inadmissibility.

These provisional waivers would benefit only those individuals who are inadmissible based solely on having accrued a period of unlawful presence and who can demonstrate extreme hardship to their U.S. citizen relative. All individuals affected by this streamlined process would still need to meet all legal requirements for admission to the United States, including the requirement that they process their visa application at a U.S. consulate abroad.

Individuals who are denied the provisional waivers would be subject to USCIS guidance and law enforcement priorities for issuing Notices to Appear (NTA). For example, convicted criminals, public safety threats, and those suspected of fraud will receive NTAs.

Spouses and children of a U.S. citizen (1) who are seeking lawful permanent residence through an immigrant visa, (2) who are inadmissible based on unlawful presence in the United States for more than 180 days, and (3) who meet the existing extreme hardship standard.

(Some aliens do not accrue unlawful presence if they fall into certain categories. For example, children under the age of 18 do not accrue unlawful presence, nor do victims of crime and aliens with pending asylum applications. Therefore the people in these groups do not need to apply for waivers.)

People who are not eligible for a provisional waiver would continue to follow the previous agency processes for filing waiver requests (Form I-601) after a determination of inadmissibility is made by a U.S. consular officer overseas.

While you can theoretically file a Form I-601A yourself, the applications for such waivers are extremely complicated and doing them incorrectly could mean family members could face separations for as long as 10 years. Prospective applicants are therefore strongly advised to hire an experienced immigration attorney to help them navigate the tricky and cumbersome waiver application process.

As a law firm with years of immigration law experience, including the filing of numerous I-601A waivers, you can count on Root Law Group to:

– Advise you as to eligibility for a waiver based on extreme hardship – Prepare and file the Form I-601A waiver application on your behalf – Gather and organize the evidence needed to support your waiver application – Deal with the submission of the waiver application to USCIS, the Immigration Court or the applicable U.S. Consulate abroad – Represent you before USCIS and at Immigration Court hearings