The I-601A Waiver of Unlawful Presence
- May 4, 2023
- Laurie Dragonchuk
- No comments
Q#1: Can you explain how someone who entered the US illegally, but is married to a US Citizen or Green Card holder, can qualify for Green Card Status down in Ciudad Juarez?
A#1: If someone has entered the United States illegally and been here for many years but has never left, and is married to a US Citizen or Green Card holder, we can apply for an I-601A Waiver of their Unlawful Presence here in the US. Only once the application is approved does the person leave the US, obtain their Green Card abroad, then return to the legally.
Q#2: How does the Unlawful Presence Waiver work?
A#2: Generally speaking, a person who enters illegally is not allowed to change from an illegal status into Green Card Status while inside of the US, they are required to get their Green Card back in their home country. But, upon departing the US, anyone who has been in the US illegally for over 1 year will incur a “punishment” of 10 years. Those persons are then required to file a Waiver of the 10-year punishment.
Stateside Processing of Unlawful Presence Waivers allow certain persons to submit their Waiver for the 10-year punishment for Unlawful Presence prior to leaving the US and allows them to await adjudication while remaining in the US. The person is still ultimately required to depart the US to complete visa processing, but the benefit of Stateside Processing of Unlawful Presence Waivers is the dramatic decrease in the amount of time a person is in their home country – what used to be over 1 year is now only 7-10 days.
Q#3: Who is allowed to use this process?
A#3: An Immediate Relative of a US Citizen for this process includes the spouse or unmarried child of a US Citizen. Additionally, if a person is married to a Green Card Holder (Legal Permanent Resident), then they also qualify to use this same process.
Q#4: Has USCIS been processing these types of cases for a very long time?
A#4: Yes. USCIS has been processing these types of cases for many years worldwide for applicants that have been in the US illegally but need a waiver before they can qualify for a Green Card based on their qualifying family member.
Q#5: How do I know if I qualify for an I-601A Unlawful Presence Waiver?
A#5: You should meet with a qualified attorney NOW in order to determine if you are eligible for this or another potential benefit. Discussing your specific immigration history with a qualified attorney is necessary because applying for this benefit still requires a person to depart the US to attend a Visa Interview in their home country. This can be dangerous if an applicant has other potential issues that aren’t resolved with an I-601A Waiver, such as multiple entries and exits from the US, alien smuggling, or serious criminal issues, resulting in a person getting stuck abroad for a long time while these issues are resolved. Therefore, making sure everything is resolved before departing the US is the safest option before preparing and filing an I-601A Waiver, and a qualified immigration attorney should be consulted before preparing any immigration application.
Eamonn P.S. Roach is an immigration attorney at the law firm of Roach & Bishop, LLP in Pasco, Washington. This information does not constitute legal advice. It is possible that this information does not apply to you. Each case depends on specific facts. If you have questions regarding the immigration laws that you would like answered in this column, please send them to: Eamonn P.S. Roach, 9221 Sandifur Pkwy, Suite C., Pasco, WA 99301, phone: (509) 547-7587, fax: (509) 547-7745; or email email@example.com.
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