Many foreigners become eligible for lawful permanent residence but are unable to complete the application process due to unlawful presence in the United States. Departing the U.S. for the consular interview may trigger a bar to reentry due to the illegal time spent in the U.S. The I-601A Waiver (also known as the “provisional unlawful presence waiver” or “Perdon”) provides a solution for many immigrants with this problem.
The U.S. government may deny lawful permanent residence for several reasons, such as crimes, fraud, immigration violations and health problems. These reasons are known as grounds of inadmissibility. The I-601A waiver deals with only one reason - unlawful presence.
Understanding the Unlawful Presence Bars
Going through the process for a U.S. green card can get very complicated for people who have accrued a certain amount of “unlawful presence” in the U.S. Unlawful presence is not necessarily the same as being undocumented. You have likely accumulated unlawful presence if you:
- Entered the U.S. without inspection (EWI)
- Overstayed an authorized period of stay or
- Breached the terms and conditions of a temporary visa status
Unlawful presence can have major long-term ramifications. A person may be barred from reentering the U.S for:
- Three years, if you depart the U.S. after having accrued more than 180 days but less than 1 year of unlawful presence during a single stay (INA section 212(a)(9)(B)(i)(I))
- Ten years, if you leave the U.S. after having accumulated one year or more of unlawful presence during a single stay (INA section 212(a)(9)(B)(i)(II))
- Permanently, if you re-enter or try to re-enter the U.S. without being admitted or paroled after having accrued more than one year of unlawful presence in the aggregate during one or more stays in the U.S.
Particular persons may be able to apply for a green card even after an unlawful presence inside the U.S. Such privilege is generally restricted to immediate relatives (spouses, parents and unmarried children under age 21) of U.S. citizens.
Qualifying for a Provisional Unlawful Presence Waiver
To become eligible for an I-601A, Application for Provisional Unlawful Presence Waiver through a family-based petition, you must meet ALL of the following requirements:
- Be physically present in the U.S. to file an I-601A application and provide fingerprints
- Be 18 years of age or older
- Be in the process of obtaining an immigrant visa and have an immigrant visa case pending with the Department of State (DOS) because you are the primary beneficiary of an approved Form I-130 (Petition for Alien Relative) or are the spouse or child of a principal beneficiary of an approved immigrant visa petition who has paid the immigrant visa processing fee with the DOS
- Be able to show that refusal of an admission to the U.S. will cause extreme hardship to the U.S. citizen or permanent resident spouse or parent
- Meet all other requirements for the provisional unlawful presence waiver and complete the Form I-601A and its instructions
- Believe that you are or will be inadmissible only because of a period of unlawful presence in the U.S more than 180 days, but less than 1 year, during a single stay or 1 year or more during a single stay
Normally, you are not eligible for a provisional unlawful presence waiver if you are in removal proceedings or have a final order of removal, exclusion or deportation.
Contact Your Nearest Immigration Attorney
If you are applying for an immigrant visa and you have overstayed in the U.S. it is advisable to speak with your local immigration lawyer. Call Gambacorta Law Office today at 847 908 4913 to see what steps to take. Our team will gladly assist you.