Waivers

There are three common waivers used when applicants for lawful permanent residence are found to be inadmissible under the Immigration and Nationality Act. These waivers are known as: (1) Application for Provisional Unlawful Presence Waiver; (2) Application for Waiver of Grounds of Inadmissibility; and (3) Application for Permission to Reapply for Admission into the United States After Deportation or Removal.

I-601A, Application for Provisional Unlawful Presence Waiver

Certain immigrant visa applicants who are relatives of U.S. citizens or lawful permanent residents may use this application to request a provisional waiver of the unlawful presence grounds of inadmissibility under Immigration and Nationality Act, BEFORE departing the United States to appear at a U.S. Embassy or Consulate for an immigrant visa interview.

Eligibility Requirements 

To be eligible for a provisional unlawful presence waiver, you must meet ALL of the following conditions:

• Be physically present in the United States to file your application and provide biometrics
• Be 17 years of age or older
• Be in the process of obtaining your immigrant visa and have an immigrant visa case pending with the Department of State
• Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen or Legal Permanent Resident spouse or parent.
• Believe you are or will be inadmissible only because of a period of unlawful presence in the United States that was
  • More than 180 days, but less than 1 year, during a single stay; OR
  • 1 year or more during a single stay
• Meet all other requirements for the provisional unlawful presence waiver

Ineligibility 

You are NOT eligible for a provisional unlawful presence waiver if any of the following conditions apply to you:

• You do not meet all of the conditions listed under eligibility mentioned above;
• You have a Form I-485 pending with USCIS;
• You are in removal proceedings, unless your removal proceedings are administratively closed and have not been placed back on the Department of Justice (DOJ), Executive Office for Immigration Review (EOIR) calendar to continue your removal proceedings at the time you file your Form I-601A;
• You are subject to an administratively final order of removal, exclusion, or deportation that has been entered or issued against you, unless, you applied for, and USCIS has already granted, an application for permission to reapply for admission;
• The Department of Homeland Security (DHS) has entered a final decision reinstating a prior deportation, exclusion, or removal order against you by serving you with a Form I-871, Notice of Intent/Decision to Reinstate Prior order, before you filed the provisional unlawful presence waiver application or while the provisional unlawful presence waiver application is pending;
• You are currently subject to an unexpired grant of voluntary departure from the immigration judge or the  BIA; OR
• you fail to establish that your U.S. citizen or LPR spouse or parent would experience extreme hardship if you are refused admission to the United States or that USCIS should approve your application as a matter of discretion by showing that favorable factors in your case should be given more weight than the unfavorable factors.

Can the Form I-601A be filed with other forms? 

Form I-601A is a standalone application. You cannot file Form I-601A with any other applications, petitions, or requests for immigration benefits.  If you submit your Form I-601A with any of the following forms, your application will be rejected and returned to you with the filing fee and biometric services fee:

• Application to Register Residence or Adjust Status;
• Petition for Alien Relative;
• Application for Permission to Reapply for Admission into the United States After Deportation or Removal
• Application for Travel Document; OR
• Application for Employment Authorization.

Approval of Form I-601A

Having a pending application for a provisional unlawful presence waiver or an approval of such a waiver will NOT

• Grant you any benefit or protect you from being removed from the United States.
• Allow you to apply for interim immigration benefits such as work authorization or advance parole.
• Guarantee DOS will issue you an immigrant visa.
• Guarantee U.S. Customs and Border Protection will admit you into the United States.
• Give you legal immigration status.
• Change the requirement that you must depart the United States in order to obtain an immigrant visa.

Validity of I-601A Waiver 

An approved provisional unlawful presence waiver takes effect once you depart the United States, you appear for your immigrant visa interview, and the DOS consular officer determines you are otherwise admissible to the United states and eligible for an immigrant visa. Once your waiver takes effect, it is valid indefinitely for the period of unlawful presence that was waived.

An approved provisional unlawful presence waiver is automatically revoked and no longer valid if

• You enter or attempt to reenter the United States without inspection and admission or parole:
  • while your application for provisional unlawful presence waiver is pending with USCIS;
  • after your provisional unlawful presence waiver is approved; or
  • before your immigrant visa is issued;
• The DOS consular officer determines at the immigrant visa interview that you are ineligible to receive the immigrant visa because you are inadmissible on grounds other than the 3-year or 10-year unlawful presence bars.
• The immigrant visa petition that was the basis for the provisional unlawful presence waiver is at any time revoked, withdrawn, or rendered invalid, but not otherwise reinstated for humanitarian reasons or converted to a widow or widower petition.
• DOS terminates your immigrant visa registration and it has not been reinstated. OR
• The DOS consular officer determines that you are ineligible for the immigrant visa.

Waiver Denial, Revocation, or withdrawal of pending application 

If your provisional unlawful presence waiver is denied or is approved, but then revoked, or you withdraw your pending application:

• You may depart the United States to attend your immigrant visa interview and apply for a waiver abroad.
• You may file a new Form I-601A along with the required filing fee and biometric services fee.
• USCIS may initiate removal proceedings.

I-601, Waiver of Grounds of Inadmissibility

An individual who is ineligible to be admitted to the United States as an immigrant or to adjust status in the United States, and certain nonimmigrant applicants who are inadmissible, must file this application to seek a waiver of certain grounds of inadmissibility.

Inadmissibility Categories

If you are applying for an immigrant, K or V nonimmigrant visa (and you are outside the United States, have had a visa interview with a consular officer, and during the interview you were were found inadmissible), or you are an applicant for adjustment of status to lawful permanent residence (excluding certain adjustment categories) you may file this application to obtain relief from the following grounds:

• Health-related
• Certain criminal grounds
• Immigration fraud and misrepresentation
• Immigrant membership in totalitarian party
• Alien smuggler
• Being subject to civil penalty
• The 3-year or 10-year bar due to previous unlawful presence in the United States

Waiver validity 

Except in certain situations, if you are granted a waiver of grounds of inadmissibility in connection with your immigrant visa or adjustment of status application, the waiver is valid indefinitely. This is true even if you do not obtain your immigrant visa, or immigrant admission, or adjustment of status, or if you lose your legal permanent residence.

The following waivers are either conditional or limited to certain benefits:

• Convention Adoptee
• K Nonimmigrant Visa Applicant
• Conditional Resident
• TPS Applicant

**Note: If the I-601 waiver is approved, the waiver that is granted will apply only to the grounds of inadmissibility and those crimes, incidents, events, or conditions that you have included in your application. For this reason, it is important that you disclose ALL conduct or conditions that may cause you to be inadmissible and list all grounds of inadmissibility for which you seek a waiver.

Evidence Required 

The evidence required is based on the grounds for which you are applying for the waiver. In general however, you should provide evidence that establishes why you may qualify for a waiver and that it is warranted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

Depending on the type of waiver you seek, this information and evidence may include but is not limited to:

1. Affidavits from you and/or other individuals
2. Police reports from any country you lived in
3. Complete court records about any conviction or charge from any country
4. If applicable, evidence of rehabilitation
5. Any evidence you may wish to submit to establish that your admission to the United State would not be against the national welfare, public safety, or national security
6. Medical Reports
7. If applicable, evidence of extreme hardship to your U.S. citizen spouse or parent or, for certain categories, children as well. Include evidence establishing the relationship (i.e., marriage certificate, birth certificate)
8. If you are a VAWA self-petitioner and you seek a waiver, submit any evidence that you believe establishes a connection between the battery or extreme cruelty that is the basis for the VAWA claim and your removal or departure from the United States, reentries or attempted reentry into the United States, and unlawful return or attempted unlawful return.
9. If you are an applicant for adjustment based on your T nonimmigrant status and you seek a waiver, submit any evidence that demonstrates it would be in the national interest to waive these grounds.
10. If you are a TPS applicant, submit any evidence that demonstrates that granting your waiver would serve humanitarian purposes, family unity, or be in the public interest.

I-212, Re-apply for Admission Into the United States After Deportation or Removal

If you are inadmissible under the Immigration and Nationality Act because of a deportation, exclusion, or removal under any provision of law OR for entering or attempting to enter the United States without admission after having been removed or after having accrued more than one year (in the aggregate) of unlawful presence you need to obtain consent to reapply for admission to the United States.

If you need to obtain consent to reapply , it is very important that you do not return to the United States before you have filed an application for consent to reapply, and before the Department of Homeland Security (DHS) has approved it.

Who isn’t required to file for consent to reapply?

If any of the following apply to you, you may not be inadmissible under INA section 212(a)(9)(A) or (C) or both, and would NOT need to seek consent to reapply for admission to the United States:

1. You were inadmissible due to deportation, exclusion, or removal, but your inadmissibility period has expired;
2. You were allowed to withdraw your application for admission at the border, and you departed from the United States within the time specified for your departure;
3. You were refused entry at the border, but not formally removed;
4. You were refused admission as an applicant under the Visa Waiver Program;
5. You departed the US after having been unlawfully present for a year or more, in the aggregate but you are not admissible because, when returning to the US through a US port of entry, you were paroled into the US;
6. You were previously deported from the United States after having been ordered excluded, deported, or removed, but you are not inadmissible because when returning to the United States through a U.S. port of entry, you were paroled into the United States;
7. You received an order of voluntary departure from an immigration judge and left the United States during the time period specified in your voluntary departure order;
8. You are an applicant for Registry under INA section 249;
9. You are in U nonimmigrant status and are applying for adjustment of status; or
10. you are an applicant for Temporary Protected Status.

General Evidence Required 

Generally, you must provide copies of documents relating to your deportation/removal proceedings, reason for inadmissibility, favorable factors for your readmission to the United States that outweigh any existing unfavorable factors, and all other evidence that support your application.