In 2013, the USDHS announced that undocumented (uninspected) immigrants who are immediate relatives of U.S. 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.
THE ADVANTAGES OF THE 601A WAIVER.
Prior to the availability of the 601A waiver, an immediate relative of a U.S. 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 of the waiver, and then only have an opportunity to return to the US.
This meant that an intending immigrant in such a situation could often be outside the US for months or even more than a year. If their petition for a waiver is denied, they could be outside the US for 10 years. The risk of prolonged separation was one that most families did not want to or could not withstand.
The 601A waiver has been a game-changer. Now, an immediate relative (who entered the US without inspection) of a US Citizen spouse can apply for the 601A waiver within the US.
If they secure its approval, they can then leave the US for a short time (a few weeks) and return with an immigrant visa after completing a consular interview in their home country. There is much less uncertainty with the 601A waiver.
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.
So if John Doe (an immediate relative of a U.S. citizen spouse) entered the country without inspection and has been unlawfully present for more than 180 days, securing a 601A waiver would allow him to obtain a waiver of his unlawful presence in the US.
The 601A waiver, however, does not waive criminal convictions, fraud, final deportation orders, or consular interviews already scheduled.
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 must still leave the US to attend a consular interview in their home country.
During the interview, the consular officer can ask not only about unlawful presence but also about other factors that may render 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 can only waive John’s unlawful presence beyond the 180 days in the US.
ELEMENTS THAT NEED TO BE ESTABLISHED FOR THE 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 instances, 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 HARSHNESS to his or her U.S. citizen spouse or parent.
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 makes sense to consult a qualified immigration attorney for 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 expressed in this guide are not intended 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.
