601 or 601A Unlawful Presence Waiver
If you are trying to adjust your status due to marriage to a U.S. citizen or legal permanent resident, but you entered the country illegally, you may need an unlawful presence waiver in order to obtain your green card.
How Do I Know If I Need An Unlawful Presence Waiver?
A person who enters the country illegally and stays for six months or longer and then leaves or departs triggers what’s called the “unlawful presence bars.”
These bars penalize people who are trying to get their green cards by making them wait either three or ten years before they can apply for adjustment of status. The 601 or 601A unlawful presence waiver is generally a compilation of documents that an immigration attorney submits on behalf of a client so that the person doesn’t have to wait the three or ten years.
This compilation includes the required government forms and filing fees, biographical information, and attorney statement describing the applicable laws and the extreme hardship the applicant would face if unable to return to the U.S.
The benefit of the 601A, as opposed to the 601, is that the applicant can submit the 601A while in the U.S. and thus avoid a lengthy family separation. However, both waivers forgive the applicants unlawful presence and allow them to obtain a green card despite an unlawful entry or departure after accruing unlawful presence.
The Three-Year Bar: under INA § 212(a)(9)(B)(i)(I) is triggered anytime a person enters unlawfully, stays for more than 180 days continuously and then departs the U.S.
The Ten-Year Bar: under INA § 212(a)(9)(B)(i)(II) is triggered anytime a person enters unlawfully, stays for 365 days or more and then departs.
If you entered the country on a valid visitor’s visa and are marrying a U.S. citizen, you may be able to adjust your status to that of a green holder without the need of a waiver.
For example: Let’s say that Amber entered the U.S. on a valid B1/B2 visitor’s visa in 2018. Let’s also assume she let her visa expire and stays in the U.S. unlawfully for more than one year. Moreover, let’s assume that in 2020 Amber meets Robert, a U.S. citizen whom she marries. In this scenario, Amber wouldn’t need a waiver for her unlawful presence because she never “triggered” the bar, i.e., she never departed the U.S. Since there are special provisions in place that forgive because with unlawful status who marry U.S. citizens, Amber could simply adjust her status while never having to leave the U.S.
Generally, the 601 and 601A waiver will be used for those who entered the country illegally or those who overstayed their visa and are marrying legal permanent residents.
In order to qualify for the unlawful presence waiver, you must meet the following criteria:
- You must have an approved I-130 petition filed by an immediate relative, or an approved visa petition with a current priority date;
- You have a pending immigrant visa case with the Department of State and the visa processing fees must be paid;
- You must have a “qualifying relative” or “statutory relative”—either a U.S. citizen or legal permanent resident spouse or parent—who will suffer extreme hardship if you, the applicant, is not able to immigrate to the United States. (U.S. citizen children can NOT be the qualifying relative for purposes of the unlawful presence waiver; however, U.S. citizen children can be the petitioner for adjustment purposes);
- Your only immigration violation is that you entered the United States illegally and stayed here unlawfully for six months or more.
- If you are in removal proceedings, the proceedings must be administratively closed or terminated prior to filing for the waiver.
In order to win an unlawful presence waiver there must be significant documentation that the qualifying relative will suffer or is suffering extreme hardship if you are not approved for the waiver.
Additionally, you will want an experienced immigration attorney to assist you. Unfortunately, eligibility for the waiver alone isn’t enough to win. USCIS only grants the waiver if it ultimately determines the applicant warrants a favorable exercise of discretion. This means that you are both eligible for the waiver and the you deserve it.
Our immigration waiver attorneys are successful in obtaining approval of the 601 and 601A unlawful presence waivers
able to win these types of waivers because we know what the government is looking for. Additionally, we spend the necessary amount of time with our clients so that we fully understand the hardship they are experiencing.
Typical examples of documentation include medical reports, hospital reports, therapist evaluations, etc.
For example: Let’s say that Maria illegally entered the U.S. in 1994 and has been in the United States ever since. In 1995 Maria gives birth to a U.S. citizen child named Joseph. Although Joseph could petition for his mother in 2016, she wouldn’t be able to adjust because Joseph is her child and children do NOT qualify as statutory relatives for purposes of the 601 A unlawful presence waiver.
Now, let’s change the facts and assume that Maria also married a United States citizen named Anthony in 1998. Let’s also assume that Anthony is a Vietnam veteran who suffers from post-traumatic stress disorder. Under the second set of facts, Maria could qualify for an unlawful presence waiver because her spouse, Anthony, is a U.S. citizen who would suffer extreme hardship if she were unable to immigrate to the United States.
If you or a loved one entered the country unlawfully and have either U.S citizen or legal permanent resident parents or you are married or engaged to a U.S. citizen or legal permanent resident, schedule an appointment with one of our unlawful presence waiver attorneys today!
We might be able to get you a green card even though you entered the U.S. illegally.