If you’ve overstayed your lawful status or remained in the U.S. after crossing without inspection, and then you depart the U.S., you’ll become inadmissible and barred for a time period. You’ll need a waiver to return. If you are outside of the United States, then you’ll need the I-601 extreme hardship waiver before the consular officer can grant the immigrant visa. If you are already in the United States without status, then you should consult an attorney to explore whether the I-601A provisional waiver would be applicable to you.
The I-601A waiver allows you to apply for the waiver from in the United States before going to the consular interview. Once you get an approval that waives the inadmissibility, you can attend the consular interview at a foreign embassy without fear of being barred from returning to the U.S. This provisional waiver only applies to you if unlawful presence is your only inadmissibility. You must already be in the U.S. If you are not in the U.S. or you are inadmissible for additional grounds, you must apply for the I-601 extreme hardship waiver. Usually this would mean that you must leave the U.S., go to the consular interview and then be denied before applying from outside of the country. Then you must wait for months or years for a decision on the waiver. The provisional waiver avoids this dilemma of being stuck in a foreign country for years during the waiver application process.
If you were deported or removed previously in addition to accruing unlawful presence, and you wish to return within the time during which you are barred, you ’may need to submit an I-212 application for permission to reapply for admission. You can read more about the I-212 application on the Employment and Family Based Immigration page of this website.
Table Summary showing period of time barred based on length of unlawful presence.
|Time Barred||Length of Unlawful Presence|
|3 years||More than 180 days but less than 1 year of unlawful presence during a single stay and before the commencement of removal proceedings|
|10 years||Accrued one year or more of unlawful presence during a single stay before, during, or after removal proceedings|
|Permanent||Accrued more than one year of unlawful presence in the aggregate during one or more stays in the United States after reentry or an attempt to reenter without inspection.|
Eligibility and Application Process
To be eligible for the Unlawful Presence Provisional Waiver you must be in the U.S. and have a U.S. citizen or Legal Permanent Resident (LPR) spouse or parent who will suffer extreme hardship if you are not permitted to enter the United States.
It is important to consult an immigration attorney to prepare the waiver. At ST Law, I use my advanced knowledge of the legal requirements as well as my experience with waivers to prepare a good waiver application to increase the chance of success in each case.