Is waiver of unlawful presence possible for you (I-601a)?

Refers to staying in the U.S. without permission due to illegal entry, crossing the border, or overstaying your visa. Children below 18 don’t accrue unlawful presence.

This means that when you leave the US, you must wait outside the country away from your family for a period of time determined based on your accrued unlawful presence.

This traditional waiver application requires you to apply and wait outside the US until the waiver is approved. If denied, you would be forced to remain outside the US for up to ten years.

This waiver allows certain immigrants to file waiver applications from inside the US which helps them avoid triggering the inadmissibility bar should the application be denied.

America has some harsh penalties if you are here illegally. Many, because of their unlawful presence cannot apply for a green card, even if they are married to a U.S. citizen, until they stay outside of the U.S. for three-years or ten years. If you are one of those people, Good News! A waiver is available.

As always, remember that immigration law is incredibly complicated. You should seek the advice of an experienced New Jersey immigration lawyer prior to taking any immigration action including seeking a waiver for unlawful presence.

What is Unlawful Presence
What are the Requirements for Provisional Unlawful Presence
What are the Requirements for the Provisional Unlawful Presence Waiver

Unlawful presence only means that you were in the U.S. without permission. That could have happened if you entered illegally by crossing the border. It can also happen when you enter legally but overstay your visa. However, you must be over 18 years old to accrue unlawful presence. You could be in the U.S. for 15 years as a minor, but you don’t accrue a single day of unlawful presence. Anyone with more than 180 days of unlawful presence (time spent in the U.S. with no valid status) is subject to a three-year inadmissibility bar. If the period of unlawful presence is longer than a year, the bar increases to ten years.

The inadmissibility bar is triggered when you leave the U.S. The Catch 22 that you face is that you are required to leave the U.S. to obtain permanent residency (green card) at a U.S. consulate in your home country. When you leave, however, you trigger the three or 10 year bar to re-entering the country. That means you must wait outside the U.S. away from your family until the inadmissibility bar passes, unless you qualify for a waiver.

Alternatively, if you are subject to the unlawful presence bar you can file Form I-601, requesting a waiver of your inadmissibility. Traditionally, this meant that you had to leave the U.S., triggering the inadmissibility bar, then file the I-601 waiver, and wait outside the country for the waiver to be approved. Because of consular processing times, you often waited for months for your waiver to be approved. If the waiver was denied, you would be forced to remain outside the U.S. for the entire period of the inadmissibility up to ten years.

Not surprising, the prospect of departing the U.S. for an uncertain period kept many from filing in the first place. Many immigrants chose to not file for their green card despite their eligibility because of the uncertainty.

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In 2013, the U.S. Citizenship and Immigration Services (USCIS) modified the procedure for obtaining a waiver for unlawful presence inadmissibility. By creating the provisional unlawful presence waiver, form I-601A, USCIS allowed certain classes of intending immigrants to file waiver applications from inside the U.S.! The benefit, of course, is that you would know your unlawful presence waiver was approved before even triggering the inadmissibility bar! Assuming you are approved, your still need to leave the U.S. and complete the consular process.

The waiver is provisional in nature because the final word is up to the U.S. consulate at your country. Nonetheless, the provisional waiver offers considerable assurance that you will overcome the unlawful presence inadmissibility and return to the U.S. You are in the U.S. while USCIS is evaluating your waiver, whereas traditionally you were in your home country waiting. This significantly reduces the time of separation from your family.

Provisional Waiver Eligibility


  1. You can’t apply before August 29, 2016 under the expanded program! There will be a new Form I-601 so wait to file! Those who qualify under the 2013 rules may file at any time.
  2. The provisional waiver is only if you have qualifying relatives and you are seeking an immigrant visa (meaning a green card). If you don’t have a qualifying relative or seeking a non-immigrant (think student visa) don’t bother applying for this waiver.
  3. Finally, remember that the provisional unlawful presence waiver is available only for the inadmissibility caused by unlawful presence. It is not available for other inadmissibility grounds such as fraud or for criminal convictions. As stated before, immigration law is complicated. This waiver expansion discussed in this blog involves extensive research into eligibility, multiple filings, and careful coordination. Because of this, anyone intending to immigrate to the United States or facing other immigration issues should consult an experienced immigration lawyer for assistance.
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People often put off seeing a doctor until it is too late. The same is true when it comes to immigration. Immigration problems often get worse with time, not better. You’re risking your family, your freedom and all that you work so hard for by not getting the care you need. You can find out right now if you may already qualify for legal status in the US. Just click below or call Andres Mejer Law to schedule a comprehensive immigration exam. It is free, so what are you waiting for?


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Where you ever caught at by immigration and returned to your country? (¿Dónde alguna vez te pilló inmigrando y regresaste a tu país?)*

Have you ever been arrested for any reason? (¿Alguna vez te han arrestado por alguna razón?)*

How many times have been arrested? (¿Cuántas veces han sido arrestados?)*

Were you arrested for any of the following reasons? (Check all that apply) (¿Te arrestaron por alguna de las siguientes razones?)

Have you ever filed for an immigration benefit and been denied? (¿Alguna vez ha presentado un beneficio de inmigración y se le ha negado?)*

Have you entered the US illegally more than once after 1997? (¿Ha entrado ilegalmente en los Estados Unidos más de una vez después de 1997?)*

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¿Tiene usted padres, conyuge o hijos mayores de 21 anos,Que ha estado o esta en las fuerzas armadas Americanas?*

Do you have a parent, spouse, or child over 21 who is or was in the US military?

¿Tiene usted padres,conyuge o hijos mayores de 21 anos, ciudadanos Americanos o residentes permanentes?*

Do you have a parent, spouse, or child over 21 who is a US citizen or lawful permanent resident?

¿Ha tenido usted, sus padres o sus abuelos un estado legal en los EEUU?*

Did you, your parents, or your grandparents ever have legal status in the U.S.?

¿Esta considerando matrimonio con us ciudadano Americano o residente permanente? ( mismo sexo incluido)*

Are you considering marriage to a US citizen or green card holder (same-sex marriage included)?



¿Alguien ha peticionado a su favor por motivos de inmigración?*

Has anyone ever filed an immigration petition for you before?

¿Ha sido usted deportado o esta usted en procedimiento de deportación ahora?*

Have you ever been deported or are you in deportation proceedings now?

Ha sido abusado por sus padres, conyuge o hijo mayor de edad?*

Has your parent, spouse, or adult child been abusive to you?

¿Si es asi, fue previo a Abril 30 del 2001?*

If so, was it before April 30, 2001?



¿Fue usted, conyuge, sus padres, pareja o sus hijos victimas de de un crimen violento en los EEUU?*

Were you, your parents, siblings, spouse, partner, or children a victim of a violent crime in the US?

¿Es usted menor de 21 años y soltero?*

Are you under 21 and not married?

¿Tiene usted un padre, conyuge o hijo menor de 15 anos con requerimientos especiales médicos (dificultades de estudio, alergias severas, asma u otra condición medica severa)?*

Do you have a parent, spouse, or child under 15 with medical or special needs (learning disability, severe allergies or asthma, or other serious medical condition)?

¿Fue usted maltratado, abusado o abandonado por sus padres?*

Did your parents mistreat, abuse, or abandon you?



¿Tenia usted 30 anos o menos en Junio, 15, 2012?*

Were you 30 years or under on June 15, 2012?

¿Tenía usted 15 años o menos en su primera entrada en los EEUU?*

Were you 15 years old or younger on your first entry into the US?

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