I-601 vs I-601A Waivers: Which Is Right?

May 25, 2022

Many situations can make an individual inadmissible to enter the United States, but in some cases an applicant can petition for a waiver to be allowed to enter or to adjust their status to permanent residency. The USCIS I-601A and I-601 waivers are available to help eligible candidates enter the United States through the immigrant visa process or to get a green card.

What is an I-601 waiver?

When examining the I-601 vs I-601A waivers, it is important to consider the grounds for inadmissibility. Applicants who are unable to adjust their status or enter the United States due to a health-related inadmissibility, immigration fraud, certain criminal actions, membership in a totalitarian party, or other grounds of inadmissibility will be requested after attending an interview at a U.S. consulate to file Form I-601, Application for Waiver of Grounds of Inadmissibility.

What is an I-601A waiver?

In 2013, a provisional waiver was developed. The requirements for the waiver were expanded in 2016. Before the I-601A provisional waiver, applicants who needed consular process but were inadmissible to the United States had to wait for up to one year for the I-601 waiver to be granted. The I-601A provisional waiver eliminates this wait time and allows for shorter family separation for particular individuals facing inadmissibility issues.

USCIS Form I-601A, Application for Provisional Unlawful Presence Waiver, is only for situations where an applicant is inadmissible due to unlawful presence only and where the applicant is inside the United States at the time of filing. If there are additional grounds for inadmissibility, such as criminal action or health grounds for inadmissibility, the applicant will likely need to file for an I-601 waiver. This waiver is also only available to individuals with a qualifying relative which includes only a U.S. citizen or legal permanent resident spouse or parent. Children are not qualifying relatives for the I-601A provisional waiver but are considered in the overall analysis of the case.

Who qualifies for each?

Applicants for an I-601A waiver must establish that their grounds for inadmissibility are due to unlawful presence alone. Other requirements include:

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They must be at least 17 years old and be physically in the United States when filing.
Applicants must have an immigrant visa application before the Department of State (DOS), either through a family or employment-based immigration program or the Diversity Visa (DV) Program.
The reason they are inadmissible into the United States is that they were unlawfully present for a year or more during one stay or less than one year but over 180 days during a single stay.

The situations in which an individual would seek an I-601 waiver are slightly different. Applicants who are outside the United States and have been found inadmissible based on unlawful presence, alien smuggling, health-related grounds, misrepresentation or immigration fraud, totalitarian party, or because they are subject to a civil penalty can seek an I-601 waiver. It’s important to understand unlawful presence when applying for an I-601A or I-601 waiver.

Unlawful presence means a person was in the United States after entering without inspection or overstaying a visa. A person may also be unlawfully present in the United States if they violated their status. This may happen if a student or visitor without authorization to work takes on a job in the United States, for example. Unlawful begins to accrue based on several factors so it is important to understand the impact of this ground of admissibility before filing a waiver.

Based on the amount of unlawful presence time an individual has accrued, individuals may be subject to a 3-year bar, 10-year bar, or permanent bar, depending on the specifics of their case. This means they cannot return to the United States or adjust their status to permanent residents for 3 years, 10 years, or permanently. However, I-601 and I-601A waivers are possible for qualified applicants who have been subject to a 3-year or 10-year bar.

Under what conditions?

Most I-601 and I-601A applicants, with a few exceptions, need a qualifying relative. This relative must be a United States citizen or permanent resident spouse or parent of the applicant. In limited circumstances, children can be qualifying relatives. One of the most difficult conditions of securing an I-601 or I-601A waiver is that applicants must demonstrate that their lack of presence in the United States will cause their U.S. citizen or resident family member “extreme hardship.” Alternatively, applicants must show that their qualifying relative would face extreme hardship upon relocation to their country of origin. Proving extreme hardship is a difficult task and requires documentation of social, economic, medical, psychological, and other factors to successfully reach the approval threshold.

What’s the process?

Applying for an I-601 waiver requires filing USCIS Form 1-601 and including all documentation, fees, and evidence required. To apply for an I-106A waiver, applicants will need to file USCIS Form 1-601A and include all required evidence and fees.

Why is it so difficult?

One issue applicants sometimes encounter is that consular processing has become more strict and passing the interview can present additional challenges. It is also important to consider every possible reason an applicant is inadmissible. If an applicant thinks they are only inadmissible due to unlawful presence and applies for an I-601A waiver, but immigration officials discover additional grounds for inadmissibility, the applicant may then need to file for an I-601 waiver, delaying the process.

There are also many complex rules for these waivers and it is the responsibility of the applicant to prove they meet all the requirements for a waiver, including the extreme hardship to the qualifying relative requirement, which can be a challenge.

The decision regarding your application will be made by an immigration official. Therefore, the chances of success in large part depend on the discretion of this individual and the overall documentation supporting your case. It is important to submit compelling information about how an applicant’s absence will impact a U.S. citizen or permanent resident qualifying family member.

It is also important to submit any information proving that any past grounds of inadmissibility will not be a factor in the future. For example, if an applicant is inadmissible due to past criminal action, the petitioner will want to submit evidence that the case is resolved and they have reformed.

Is there a cap?

There is currently no cap or limit to the number of I-601 and I-601A waivers granted. Any applicant who qualifies for a waiver can apply. However, processing times are greater than ever so applying as soon as possible will help secure your place in line.

Do the waivers expire?

The I-601 and I-601A waivers do not generally expire, though there are a few exceptions. The waivers also only cover the grounds of inadmissibility that were disclosed in the application. If there are further grounds for inadmissibility that arise following the filing of the application, the applicant may be barred from entry into the United States or may not be able to adjust their status.

How can Farmer Law help applicants navigate the process?

Applying for a waiver when you have been found inadmissible is stressful and challenging, but an immigration attorney may be able to help. An attorney can ensure an applicant is applying for the correct waiver, reducing the risk of automatic denial. A qualified immigration attorney understands what immigration officials need to see and can help applicants identify which information will strengthen an application.

If you need an immigration attorney who has successfully helped people file for an I-601 or I-601A waiver, contact Farmer Law for a consultation. Our legal team works with individuals navigating the U.S. immigration system.

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I-601 vs I-601A Waivers: Which Is Right?

What is an I-601 waiver?

What is an I-601A waiver?

Who qualifies for each?

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Have a Question?

More Information from Farmer Law

Immigration Law

Under what conditions?

What’s the process?

Why is it so difficult?

Is there a cap?

Do the waivers expire?

How can Farmer Law help applicants navigate the process?

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