Immigration is a complex process, and despite your best efforts, you may find yourself in a less than ideal situation when it comes to your entry or residency status. When you’re trying to enter or emigrate to the United States, you might be concerned about your chances if you are currently in the United States without current documentation, or have been otherwise found “inadmissible.”
Perhaps you previously acted on poor advice regarding your immigration paperwork, or perhaps you were brought to the United States as a child. Whatever the reason for your inadmissibility, you may still have a chance to get your green card and become a lawful resident of the United States. Read on for an explanation of how to get a green card if you entered the United States illegally.
What are forms I-601/I-601A?
When you have been found inadmissible to the United States for immigration purposes, such as if you were deported for overstaying a previous visa or are applying for a health-related waiver, you will need to file either a Form I-601 or I-601A. Which forms you need depends on your specific situation, and there are very specific rules and processes for each.
What is the difference between Form I-601 and Form I-601A?
Form I-601 is used for those outside the U.S, who are appealing their inadmissibility status or applying for an adjustment of status. While form I-601A is used to protect those inside the U.S. without proper documentation, who desire to leave to properly apply for a green card. Both processes are used when experiencing roadblocks in your pathway to immigration.
Who should apply for a waiver using Form I-601?
Form I-601 is for visa applicants facing challenges to their admission to the United States because they have been found inadmissible. Some of the potentially waivable inadmissibility reasons are:
- Previous diagnoses of some communicable diseases
- History of drug abuse or mental health issues
- Overstay of a student or tourist visa
- Minor criminal offenses
- Documentation errors or missing evidence
- Previous removal from the United States
- Adjustment of status ineligibility
If you have applied for a visa from outside the U.S. but was found ineligible, you can petition for a waiver using Form I-601. For your initial visa application, you must be living outside of the United States to file for a waiver using a Form I-601. If you are applying for an adjustment of status, you may apply while you are living in the United States. As part of your application, the United States Citizenship and Immigration Services (USCIS) will look at evidence that tells the story of who you are as a whole. This includes:
- How long you have lived in the United States, whether lawfully or not;
- Your criminal record, if any;
- Your immigration history in the United States, including previous lawful entries, applications, or denials;
- Your familial ties to citizens or permanent residents in the United States;
- Hardships that your denial of immigration would cause to you or to your family in the United States;
- Your likelihood of becoming a permanent resident in the future;
- Your employment history in the United States and evidence that your employment continues to be a needed service;
- Evidence that you are a person of good moral character, i.e. an I-601 waiver letter of support from your employer or otherwise upstanding person; and
- Any other factors you believe will help your case.
Who should apply for a waiver using Form I-601A?
If you are living in the United States without permanent residency (a green card), but wish to apply for a green card, you should consider the form I-601A. This form requests the U.S. government to waive the time-bar requirement due to your previous violation of U.S. immigration laws. Restated, you are using Form I-601A to find out from USCIS, whether you will be able to remove the standard ban on returning to the United States, if you leave to apply for a green card.
If you are living in the United States and have an immediate relative or immigration sponsor who is a green card holder or U.S. citizen, you may be able to apply to waive the lengthy ban you would ordinarily face for unlawful presence in the U.S. Normally, this ban on readmission could range from three to ten years, so the I-601A waiver is an important tool for those who seek to reside in the United States with their families.
How do I file for a waiver?
Applying for a waiver of inadmissibility is an important step. While simply filing the application is not a guarantee of the waiver approval, nor is it a guarantee for visa or green card approval, it is nevertheless a crucial step in the complex process, and is worth getting right.
- Form I-601: If you’ve been advised by your attorney or an official at the United States consulate that you are eligible to apply for an I-610 waiver on the grounds of inadmissibility, then you should consider filing for one. Waivers are generally granted in cases of extreme hardship, which you will need to demonstrate in your application. The following circumstances are examples of extreme hardships
- Education: Inability to complete your educational goals.
- Financial: Denial of admission would have a negative impact on your current and future earnings.
- Health: You require continued and/or ongoing treatment in the U.S.
- Personal: Your denial of admission would be a hardship to your immediate family members who are U.S. citizens.
- Special Factors: You are facing persecution or threats in your home country.
- Form I-601A: If you are eligible to file for a waiver under I-601A, you will have to file this form independent of any other immigration applications. You should file while inside the U.S., and then submit your evidence to the Department of State’s National Visa Center.
- After you submit your evidence, you will be scheduled to attend an immigration interview. Note, your application will not be considered for further review if you are involved in any disqualifying immigration proceedings, such as:
- If you currently have an adjustment of status pending with USCIS, you will not be eligible to file for this waiver.
- If you already have a deportation order pending against you, you will not be able to apply for this waiver. However, if you are still in removal proceedings, you can still apply. If your waiver is approved, you will need to resolve your removal proceedings before leaving the United States.
There are many different immigration-related waivers, which can make this complex situation even more confusing. If your inadmissibility status is because of a previous deportation, you will also need to file Form I-212. Sometimes, filing Forms I-212 and I-601 together can speed up your readmission process.
How can an experienced lawyer make the process easier?
Being found inadmissible for immigration purposes is a terrifying thought for many, especially if you’ve already established a life in the United States. However, you should know that while nothing is guaranteed, the USCIS does offer an opportunity to review your individual case and circumstance. But, as with any immigration case, the rules for a waiver application, the evidence you must present, and the process you must follow can be extremely complicated. And even the slightest paperwork error can result in long delays or denials. If you believe you may qualify for a waiver of inadmissibility, schedule a consultation with Farmer Law today.