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In 2013 the USDHS announced that undocumented (uninspected) immigrants who are immediate relatives of US Citizens (spouse, child between 17 and 21, or parent of a child over 21) may be eligible to apply for a 601A waiver for unlawful presence of more than 180 days prior to leaving the US.

1. THE ADVANTAGES OF THE 601A WAIVER.

Prior to the availability of the 601A waiver, an immediate relative of a US Citizen spouse, who entered the US without inspection, had to leave the US, seek a waiver for their unlawful presence of more than 180 days, wait for the approval on the waiver, and then only have an opportunity to return to the US. This meant that often an intending immigrant in such a situation could be outside the US for months or more than a year. If their petition for a waiver was denied, they would face the possibility of being outside the US for 10 years. The risk of prolonged separation was a risk that most families did not want to or could withstand. The 601A waiver has been a game changer. Now an immediate relative (who entered the US with out inspection) of a US Citizen spouse can apply for the 601A waiver within the US. If they are able to secure its approval, they can then leave the US for a short time (few weeks) and return with an immigrant visa once they have completed a consular interview in their home country. There is much less uncertainty with the 601A waiver.

2. WHAT DOES THE 601 WAIVER COVER AND NOT COVER?

The 601A waiver is a waiver (or pardon) of unlawful presence in the country for more than 180 days and beyond. So if John Doe (an immediate relative of a US Citizen spouse) entered the country without inspection and has unlawful presence of more than 180 days, securing a 601A waiver would allow him to get a waiver for his unlawful presence in the US. The 601A waiver however does not provide a waiver for criminal convictions, fraud, individuals with final deportation orders, or those who already have a consular interview scheduled.

3. THE 601A WAIVER APPROVAL IS NOT THE END OF THE ROAD FOR THE INTENDING IMMIGRANT.

Securing an approval of a 601A waiver is an initial step in the process. Once the 601A waiver has been approved, the intending immigrant still has to leave the US for a consular interview in their home country. During the interview the consular officer can not only ask about the unlawful presence but other aspects that may make someone inadmissible to the US. Hypothetically, if John Doe, an uninspected immediate relative of a US citizen spouse, entered the US with his uninspected minor son, then he may need a waiver other than the 601A waiver. The 601A waiver here would not pardon John’s unauthorized entry into the US with his minor son. The 601A waiver only can waive John’s unlawful presence beyond the 180 days in the US.

4. ELEMENTS THAT NEED TO BE ESTABLISHED FOR AN APPROVAL OF A 601A WAIVER.

In order to be eligible to apply for the stateside 601A waiver in the U.S. the petitioner must establish the following:

  • Be married to a U.S. citizen (Or in some instancces immigrants between 17 and 21 years old who have a U.S. citizen parent, or immigrants who have a U.S. citizen child over 21 years old)
  • At the time of filing the 601A waiver be physically present in the US;
  • Have an I130 approved petition;
  • Demonstrate EXTREME HARSHIP to his or her U.S. citizen spouse or parent.

5. HOW DOES ONE ESTABLISH EXTREME HARDSHIP TO A QUALIFYING RELATIVE (US CITIZEN SPOUSE OR PARENT)?

Establishing extreme hardship is case specific. A petitioner can demonstrate economic, health, safety, and emotional hardship to their qualifying relative in order to make their case of extreme hardship. Hypothetically, if John Doe (an uninspected immigrant husband of US citizen Sue Doe and father of two minor US citizen children) the main breadwinner and primary caretaker of his children wanted to petition for a 601A waiver, he would need to establish how his removal would have a significantly adverse economic, health, emotional, and safety impact on his US citizen wife. To make his case, he would need to provide strong supporting documentation. Establishing extreme hardship is a high standard and as such it does make sense to consult with a qualified immigration attorney to seek an assessment of the case.

Kasturi Law, LLC (Attorney Shobhana Kasturi) This guide is only general in nature and is not to be construed as legal advice. The viewpoints communicated in this guide are not meant to and do not create an attorney-client relationship. Talk to a local attorney about your specific facts and the goals you want to accomplish.

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