In the U.S. there are spouses and children of U.S. citizens (immediate relatives) and legal residents who are in the United States are not eligible to apply for lawful permanent resident (LPR) status while in the United States due to their illegal entry. Under prior law, these immediate relatives must travel abroad to obtain an immigrant visa from the Department of State (DOS) to return to the United States to request admission as an LPR (Lawful Permanent Resident), and, must request from the Department of Homeland Security (DHS) a waiver of inadmissibility as a result of their unlawful presence in the United States.
Without such a waiver the applicant would not be able to return to the U.S. for a period of not less than 3 years. In other words, under the prior regulations, these immediate relatives and spouse and child of a Lawful Permanent resident cannot apply for the waiver in the United Sates and would not receive their Green Card until after their immigrant visa interviews abroad. As a result of their unlawful presence in the U.S., these relatives had to remain outside of the United States, separated from their spouses, parents, or children, while USCIS adjudicates their waiver applications. In some cases, waiver application processing took well over one year, prolonging the separation of these immediate relatives from their U.S. citizen spouses, parents, and children.
The new provisional unlawful presence waiver (I-601A) process facilitates the issuance of immigrant visa for immediate relatives of U.S. citizens and spouse and children of Lawful Permanent Residents, who are otherwise admissible to the United States except for the 3-year and 10-year unlawful presence bars, which are triggered upon departure from the United States.
The waiver process allows eligible immediate relatives to apply for a provisional unlawful presence waiver while they are still in the United States and before they leave to attend their immigrant visa interview abroad.
Once abroad the process take only 3 weeks. You may remain in your country for up to 4 weeks to visit family and take care of business.
Entering the U.S. is simple and about 30 days later you receive the Green Card in the mail.
Aliens in removal proceedings are allowed to participate in this new provisional unlawful presence waiver process if their removal proceedings are administratively closed and have not been re-calendared at the time of filing the Form I-601A. Aliens whose removal proceedings are terminated or dismissed are covered in the general population of aliens who are eligible to apply for a provisional unlawful presence waiver. Note that if you failed to appear and received an in absentia order of removal, then you will need to make a motion to reopen your case, before you can apply for the 601A waiver.
If you have been ordered Deported or Removed, you will also qualify. However you will need to apply for 2 different waivers, one for being ordered deported (i-212) and the other for having remained in the U.S. illegally. (I-601A)
The 1996 Illegal Immigration Reform and Responsibility Act (IIRAIRA) produced a three-year, ten year, and permanent bars on admission to the U.S. for an assortment of immigration status violations.
The three-year bar to re-entry into the U.S. applies to persons who have been unlawfully present in the United States for a continuous period of more than 180 days (6 months), but no more than one year, and who voluntarily depart the U.S. Departing the U.S. activates the bar, even if the trip is to a consular process to obtain an immigrant visa.
The ten-year bar to re-entry into the U.S. applies to individuals unlawfully present in the U.S. for an cumulative period of one year or more who depart voluntarily Unlawful presence begins to accumulate when the period of authorized stay elapses or after an entry to the U.S. without inspection.
Now, if you entered the United Sates illegally through the borders such as by sneaking in through Mexico or Canada in most every case, will not be allowed to receive your Green Card in the U.S. If you entered with a visa, but overstayed your visa (except for immediate relatives), you will also not be allowed to receive your green card in the United States (adjustment of status).
In these cases you will go through the process called Consular Processing. This process begins with the completion of form I-130 and filing it with the Immigration Service. After some months, if all the paperwork is correct you will receive a NOTICE OF APPROVAL. A copy of the NOTICE OF APPROVAL will also be sent to the National Visa Center. They will send you a package to complete the forms. It consist of a set of forms that sets forth the steps that you are to follow and a notice that you must establish that you will not rely on public assistance once you are in the U.S. and a form to be completed by the sponsor which is a biographical data form. You will complete the forms immediately and send to the consulate. You will then gather all the documents required and have them available when you are called for an interview.
1. If you or your parents (while you were under 21 years of age) filed a permanent visa application with the Immigration and Naturalization Service or Labor Department before April 30, 2001, you are protected form this law and will be allowed to receive you Green Card in the United States by paying a fine of $1,000. This is called Section 245(i) adjustment.
2. Children under 18 years of age;
3. Spouse children (under 21 years of age) and parents who entered with a visa;
4. Most people who filed a case with the Labor Department or the Immigration and Naturalization Service for Permanent Residency before April 30, 2001.
For those that fall into this category, there are limited waivers available for those that want to return in less time.
The 601 waiver is required to be submitted in order to overcome an inadmissibility bar for a prior visa overstay, misrepresentation, fraud, or certain crimes.
An immigrant visa applicant who is ineligible for a visa under INA 212(a)(9)(B) “Unlawful Presence” may not apply for a waiver unless he or she is the spouse or son or daughter of a U.S. citizen or lawful permanent resident (LPR). A waiver under INA 212(a)(9)(B)(v) will be granted in such a case only if the applicant can establish that denial of his or her admission would result in extreme hardship for the U.S. citizen or LPR.
The factors considered relevant in determining extreme hardship to a qualifying relative include, but are not limited to, the following: the presence of United States citizen or lawful permanent resident family ties to this country; the qualifying relative’s family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to such countries; the financial impact of departure from this country; and, finally, significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. Matter of Cervantes, 22 I. & N. Dec. 560, 565-566 (BIA 1999).
To establish extreme hardship it is required to demonstrate that the qualifying relative is suffering more than the usual or typical hardship that a family member would experience if their relative cannot rerun to the U.S. Establishing financial hardship alone is not enough. The U.S. citizen/permanent resident relative and not the non-citizen applicant must experience the hardship. It must go beyond that normally expected in cases of family separation. Successful applicants will have to demonstrated unusual hardships to the U.S. citizen/permanent resident relative, such as: a major medical conditions (physical and/or mental); Relative is caring for an elderly, chronically ill, or disabled relative who needs constant care; Relative is the primary caregiver for his/her child(ren) from a prior relationship and the child(ren)'s other parent will not allow the children to be taken out of the country and the child(ren) have formed an emotional attachment to Alien lack of the U.S. citizen/permanent resident’s family ties to the applicant’s country of origin; ability to speak the applicant’s native language; financial considerations; loss of opportunity in applicant’s country of origin, etc
1. I-601 Waiver is used when the beneficiary is living abroad.
2. I-601A Waiver is used when the beneficiary is living in the United States.
Since March 4, 2013, certain immigrant visa applicants who are immediate relatives (spouses, children and parents) of U.S. citizens that entered the U.S. illegaly can apply for provisional unlawful presence waivers (I-601A) in order to return to the U.S. quickly.
This waiver may be requested before they leave the United States for their consular interview.
Foreign nationals who are not eligible to adjust their status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return. Typically, these foreign nationals cannot apply for a waiver until after they have appeared for their immigrant visa interview abroad, and a Department of State (DOS) consular officer has determined that they are inadmissible to the United States.
Under current law an undocumented spouse that entered illegally or remained past the visa date (unless an immediate relative) may not apply for adjustment of status and become lawful permanent resident unless they return to the their home country and reenters properly. The big drawback with this scenario occurs when the undocumented resident remained in the U.S. illegally for any period greater than six months. In such a case, they are subject to the 3/10-year bar to re-entry. This means that they will have to remain abroad, anywhere between three to ten years, unless the U.S. citizens is granted a waiver. The catch is that such a waiver (I-601) can only be filed after the undocumented spouse leaves the U.S. The processing time for these waivers can take over a year; a long time to separate families
The provisional unlawful presence waiver process allows immediate relatives who only need a waiver of inadmissibility for unlawful presence to apply for that waiver in the United States before they depart for their immigrant visa interview. This new process was developed to shorten the time that U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States.
If the waiver were approved, the immigrant spouse would be given a temporary waiver but still would have to return to his country to apply for the permanent resident visa (green card) to return to the United States.
"We have had a significant number of I-601 waivers approved. If you are unsure how to proceed, give us a call and Immigration Attorney Moses Apsan will provide you with a consultation exploring every available avenue to resolve your immigration problem."
Form I-601, (Application for Waiver of Ground of Inadmissibility) can be used for immigrant visas, non-immigrant fiancé visas, V visas, and adjustment of status , to request a waiver of the following grounds of inadmissibility in the Immigration and Naturalization Act (INA):
Note that this is the waiver used for those that lived illegally in the U.S. for more than six months followed by an trip out of the U.S.
Form I-601 is also used to waive certain grounds of inadmissibility when an applicant is seeking immigration benefits under the Nicaraguan Adjustment and Central American Relief Act (NACARA), the Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA), and under the Temporary Protected Status (TPS) or Violence Against Women Act (VAWA) program. Because officers at international USCIS offices are not likely to encounter these types of waiver applications, this SOP will only briefly address them.
Grounds of Inadmissibility and Waiver Provisions
The statutory and regulatory authority of USCIS to grant waivers is outlined in the chart below.
Type of Inadmissibility
Regulation / Notes
8 CFR 212.7(b)
in a totalitarian party
(for close family
Subject of civil penalty
violation by approved
VAWA self Petitioner
does not apply to
Prior Removal and
violations by NACARA
202 or HRIFA
212(a)(9)(A) and (C)
8 CFR 245.13(c)
8 CFR 245.15(e).
does not apply to
Almost Any Ground of
Applicants for TPS
grounds that apply may be
waived, except for the
• 212(a)(2)(C) relating
to drug offenses,
except for a single
offense of simply
possession of 30
grams or less of
• 212(a)(3)(C); or
8 CFR 244.3
It is important to note that there are no waivers available for certain scenarios that are commonly encountered in the overseas context. For example, an applicant applying for a waiver based on having accrued unlawful presence in the U.S. may also be inadmissible for having failed to attend an immigration court hearing. Therefore, officers must carefully review the record to identify all grounds of inadmissibility. Various scenarios that may be common in the overseas context and for which no waivers are available are identified.
I. Validity of an Approved Waiver
A. Valid Only for the Crimes, Events, or Incidents Specified in the Waiver Applications
An approved waiver is only valid for those crimes, events, or incidents specified in the application for a waiver. Except as specified in Sections III(B), (C) or (D) of these procedures, or for individuals granted Temporary Protected Status (TPS), once granted, the waiver is valid indefinitely, even if the recipient of the waiver later abandons or otherwise loses lawful permanent resident status. If an individual had been in the United States on TPS status and the status was granted after a waiver of inadmissibility was approved, the applicant is required to obtain a new waiver when applying for other benefits, if still inadmissible. The waiver granted for TPS purposes is valid only for TPS purposes.
B . Conditional Grant of a Waiver to K-1 and K-2 Visa Applicants
Although the K classification is a nonimmigrant classification and is generally eligible for an INA 212(d)(3)(A) nonimmigrant waiver, DHS regulations permit the K visa applicant to file a Form I-601 to obtain an immigrant waiver of admissibility. 8 CFR 212.7(a). USCIS has jurisdiction of section 212(d)(3)(A) requests in the case of K nonimmigrants. A separate 212(d)(3)(A) application and fee is not required when a section 212(d)(3)(A) request originates with a Department of State officer. 8 CFR 212.4(a)(1). Generally, a consular officer may forward to USCIS both a Form I-601 packet (for the immigrant waiver) and a Form OF-221, Two-Way Visa Action and Response, recommending a grant of a nonimmigrant waiver. (9 FAM 41.81 N9.3). If the consular officer submits an OF-221 along with the Form I-601 and USCIS staff approve the Form I-601, USCIS staff should also approve the OF-221. If the Form I-601 is denied, staff should also deny the OF-221. Because a K-1 (and K-2) applicant does not yet have the requisite relationship to a United States citizen, to qualify for an immigrant waiver, the approval of the Form I-601 is granted on a conditional basis. That is, USCIS makes a final determination on the eligibility for an immigrant waiver from inadmissibility once the applicant (or the applicant's spouse) has celebrated a bona fide marriage to the U.S. citizen who had filed the K visa petition. If the applicant establishes eligibility for the waiver when seeking a K-1 or K-2 visa, the adjudicator conditionally approves the application. The condition imposed on the approval is that the applicant (or the applicant's parent) and the U.S. citizen who filed the K visa petition will celebrate a bona fide marriage within the statutory time frame of three (3) months, from the day of the applicant’s (or the applicant's parent's) admission into the United States. Despite the conditional approval, USICS may ultimately deny the Form I-601 if the applicant (or the applicant's parent) does not marry the United States citizen who filed the K visa petition or if the applicant (or the applicant's parent) does not seek and receive permanent residence on the basis of that marriage.
C . Conditional Grant of Approval of Form I-601 under 8 CFR
204.313(g)(1)(ii) for Intercountry Adoption of a Convention Adoptee
The grant of a waiver of inadmissibility in conjunction with the provisional approval of a Form I- 800 is conditioned upon the issuance of an immigrant or nonimmigrant visa for the child's admission to the United States based on the final approval of the same Form I-800. If the Form I-800 is finally denied or the immigrant or nonimmigrant visa application is denied, the waiver is void.
D . Reconsideration of the Grant of Form I-601
According to 8 CFR 212.7(a)(4), nothing in 8 CFR 212.7 shall preclude a Director from
reconsidering a decision to approve Form I-601, if the decision to grant the waiver is determined to have been made in error. Upon its own motion to reconsider, USCIS would issue to the applicant a Notice of Intent to Revoke with the possibility to respond to the adverse information.
IV. Filing with the Department of State (DOS)
An applicant for an immigrant visa or "K" nonimmigrant (fiancé(e) or spouse) or V visa who is inadmissible and seeks a waiver of inadmissibility files the application for waiver, Form I-601, with the U.S. Consulate’s Immigrant Visa Section (IV) that is considering the visa application. 8 CFR 212.7(a)(1)(i). When a consular officer determines that the alien is admissible except for the grounds for which a waiver may be sought, the consular officer informs the applicant of the requirement to file a Form I-601. The alien must file the application at the consular post, which receipts the fee and then forwards the application to USCIS for a decision. Consular posts should send to overseas USCIS offices only those waiver applications where there are no other grounds of inadmissibility that cannot be overcome. The FAM makes clear that the determination of whether or not to grant a request for an immigrant waiver lies solely within the jurisdiction of DHS. Even if the consular officer does not believe an applicant is eligible for a waiver, DOS must submit the waiver request to the DHS at the applicant’s insistence to allow DHS to determine waiver eligibility. See e.g., 9 FAM 40.21(A) PN2.1 Making Waiver Requests Directly to Department of Homeland Security (DHS).
If the application is filed to waive a communicable disease of public health significance, and the applicant is incompetent to file, a qualified family member may file the waiver application on the applicant's behalf. 8 CFR 217.7(b)(1). For any other use of Form I-601, 8 CFR 103.2(a)(2) permits a duly appointed guardian to sign the Form I-601 on behalf of an incompetent person.
The waiver packet forwarded to USCIS will usually include a questionnaire and may include a recommendation from the consular officer. The U.S. Consulate’s IV Section should have advised the applicant why a waiver is needed. It is not uncommon for an applicant to have several grounds of inadmissibility and need more than one type of waiver. The FAM procedural notes provide detailed guidance on what documents the DOS should provide when transferring the Form I-601 packet to USCIS. See e.g., 9 FAM 40.21(A) PN2 Waiver of Ineligibility under INA 212(h).
If the applicant has been excluded, deported or removed from the United States and seeks
admission again, the applicant may also need to file Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal. See 8 CFR 212.7(a)(i). If the applicant has already been granted permission to reapply for admission by a domestic office, the applicant is not required to file another Form I-212 with the Form I-601.
II . USCIS Receipt of Waiver
A. USCIS Reviews Application for Completeness and Fingerprint Checks
When the application is received, USCIS staff reviews it to confirm that it was properly signed by the applicant or a qualifying family member and that there is evidence that the fee was paid.
The application packet should also include a set of fingerprints or results of the fingerprint check conducted by the FBI after submission of the prints by DOS. If the fingerprints have not been taken, DOS must be contacted and have the applicant fingerprinted. If no response has been received within 10(ten), USCIS staff will return the application to DOS and notify the applicant of the action.
B. Background Checks
1. DHS database checks
Prior to adjudication of the waiver, USCIS staff research the Central Index System (CIS) to determine whether an A-file exists for the applicant. If there is a record of an A-number, staff will note the A-number on the Form I-601 and also:
• Review the EOIR screen through RAPS, EARM, or CIS to determine whether the
applicant has been previously placed in removal/deportation proceedings before
• Review CIS, CLAIMS, the EOIR screen and, where appropriate, RAPS to determine
whether the applicant has applied for asylum or adjustment of status and, if so, note
the dates the applications were pending;
• Review EARM for any information regarding prior deportations;
• Review CIS for NAILS record(s). If CIS indicates that there is a NAILS record IBIS
must be queried to determine the nature of the NAILS record, even though some of
the information may already be contained in results of a CLASS check Events that
result in the NAILS hit may have occurred between the IV application/CLASS check
and the time the waiver is adjudicated.
2. Fingerprint checks
Normally, DOS obtains electronic fingerprints from the applicant, forwards them to the FBI, receives the FBI response and includes it in the waiver packet provided to USCIS for adjudication. There may be some cases where USCIS receives hard copies of the fingerprints. In those cases, USCIS sends the fingerprint cards to the Nebraska Service Center as noted in section V.A. above. If USCIS submits the fingerprints to the FBI, the response will be uploaded into FBI Query and USCIS staff can check FBI Query for the response.
3. Waiver available for all applicable inadmissibility grounds
Once the inadmissibility ground(s) has been established, the adjudicator determines whether a waiver is available. If a waiver is available for each applicable inadmissibility ground included in the application, the adjudicator determines whether the applicant meets all the requirements of the waiver and merits a favorable exercise of discretion.
This I-212 "waiver" is for an inadmissible immigrant or non-immigrant that's seeking permission to reapply for admission into the U.S., (also called “consent to reapply”) after they were been excluded, deported, or removed from the U.S. or had been unlawfully residing within the U.S. for an aggregate amount of over one year, and afterwards entered or tried to reenter the us without being properly and legally admitted.
Aliens who are deported from the U.S. are usually barred for a period of time. The amount of time that the alien is barred are often either five, ten or twenty years depending on the circumstances of and reasons for the deportation. In order to be readmitted before completion of this time period, a I-212 waiver for Reapplication for Admission should be filed.
In some cases, the I-212 waiver is filed in conjunction with an I-601 waiver application (for those who remained within the us illegally for a time of greater than six months). Or let's say, somebody who has been ordered deported from the U.S. when an Immigration judge has determined a finding of fraud under INA § 212(a)(6)(C)(i), that imposes a bar to getting into the U.S., will require an I-212 waiver application and either an I-601 waiver application ( for an immigrant visa) or an I-192 waiver application (for a nonimmigrant visa).
The I-212 application, once granted, would waive the previous removal. The I-601 or I-192 application, if approved, would waive the fraud grounds of inadmissibility.
Section 212(h) of the Immigration and Nationality Act provides that the Attorney General may, in his discretion, waive effect of crimes involving moral turpitude, multiple criminal convictions), vice crime and commercial vice, certain aliens who have asserted immunity from prosecution, and an offense of simple possession of thirty grams or less of marijuana.
This waiver is often used for the following crimes:
(I) a criminal offense involving moral depravity (other than a strictly political offense or an attempt or conspiracy to commit such a crime), or
(II) a violation of (or a conspiracy or plan to violate) any law or regulation of a State, the U.S., or a foreign country regarding a controlled substance (as outlined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible.
Multiple criminal convictions. -Any alien condemned for two or more offenses (other than strictly political offenses), in spite of whether or not the conviction was during a single trial or whether or not the offenses arose from one scheme of misconduct and in spite of whether or not the offenses involved moral depravity, that the aggregate sentences to confinement were five years or more is inadmissible .
Under section 212(a)(6)(C)(i) of the Act, an alien who, by fraud or willful untruth of a material fact, seeks to acquire, has sought to acquire, or has procured a visa, other documentation, or admission into the U.S. or other benefit provided in the Act, is inadmissible. However, the Attorney General may waive the application of section 212(a)(6)(C)(i) of the Act in the case of an immigrant who is the spouse, son, or daughter of a U.S. citizen or of an alien lawfully admitted for permanent residence if it's established to the satisfaction of the Attorney General that the refusal of admission to the U.S. of the alien would lead to extreme hardship to the citizen or lawful resident spouse or parent of the alien. INA 212(i).
This waiver was created by Congress to assist in uniting families and preserve family ties composed of U.S.citizens or lawful permanent residents.
To be eligible the alien must be a spouse, child, or parent of a U.S. citizen and also the alien or a child of the alien must have been battered or have been the subject of extreme cruelty perpetrated by the alien’s spouse or intended spouse. The spouse or child of a lawful permanent resident of the U.S. is additionally eligible for a waiver where the alien or the alien’s child has been battered or has been the subject of extreme cruelty perpetrated by the alien’s spouse or intended spouse.
If you have violated the United States immigration laws and wish to enter the United States with a non-immigrant visa there is also an Immigration waiver available. The Immigration and nationality Act (I.N.A.) that provides for a waiver, 212(d)(3). Nonimmigrant visa holders are people who have entered the united states with permission, for a brief period. Examples include tourist for business or pleasure, students, H-1B visa holders and different temporary employees, treaty traders and investors, intra-company transferees, and foreign government officials.
An immigration waiver under this law permits visitors to temporarily enter the United States though they're found to be inadmissible. Some of the grounds that are covered by the immigration waiver include permanent grounds of inadmissibility, akin to fraud or criminal conduct, in addition as some grounds that are limited in length, such as previous unlawful presence.
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