Can I Get A Green Card if I Overstayed my Visa? 601A Provisional Unlawful Presence Waiver Explained

Many people find themselves in the position of having an approved I-130 application but are ineligible to apply for a green card because they have been in the U.S. without proper papers for over 180 days. For some individuals a waiver exists that will forgive the “unlawful presence” in the U.S. and allow close relatives of U.S. citizens to obtain a green card.

In the past, a waiver applicant had to leave the U.S. to apply for this waiver which presented a significant amount of risk as waivers are difficult to get approved. Now however, a waiver (601A) can be applied for in the United States which significantly reduces the risk of temporary or permanent separation from family members.

What the Law Was Before the Changes
Prior to March 4, 2013, non-citizen spouses, children under 21 and parents (immediate relatives) of U.S. citizens that had stayed in the U.S. more than 180 days without proper documentation or authorization were not eligible to get a green card in the United States and had to travel abroad to obtain an immigrant visa. Upon their departure, they become statutorily-barred from entering the country for three or ten years, depending on how long they were present in the country without authorization. As a result, in order to obtain green cards, applicants had to stay abroad enduring months and sometimes years of separation from their U.S. citizen relatives while awaiting adjudication of their immigration application and waiver of their unauthorized period of stay in the United States. In addition, the granting of a waiver is discretionary and they are difficult to get granted. Such separation have caused applicants and their families to experience emotional and financial hardships while the applicant waits abroad for a decision on his or her application.

What is the Law Now?
On March 4, 2013, DHS published a rule establishing a provisional waiver process, which streamlines certain aspects of the waiver process, facilitates immigrant visa issuance, and promotes family unity. Since then, eligible applicants can apply for this waiver before they leave the United States for their consular interview, shortening the time U.S. citizens are separated from eligible immediate relatives while those family members are obtaining immigrant visas abroad. This also adds the benefit of knowing whether or not your waiver has been approved prior to leaving the U.S.

Proposed Changes to the Law to Expand the Program
On July 15, 2015, the United States Citizenship and Immigration Service (USCIS) published a draft regulation to expand existing options for family members of U.S. citizens and Legal Permanent Residents (LPRs) Through this new regulation, the Obama Administration seeks to expand eligibility for a provisional waiver beyond immediate relatives of U.S. citizens to aliens in all statutorily eligible immigrant visa categories. The Administration, through the Department of Homeland Security (DHS) also proposes to expand who may be considered a qualifying relative for purposes of the extreme hardship determination to include LPR spouses and parents. USCIS will receive comments on this draft regulation until September 21, 2015 and will issue a final rule in Spring 2016.

The term “Extreme Hardship” is a key factor in determining eligibility for a waiver. See this term explained by clicking here.

Who will benefit from this Proposed new Regulation?
Under current legislation, only immediate relatives of U.S. citizens who are in the United States are eligible to request a provisional unlawful presence waiver before departing for consular processing of their immigrant visas. The waiver currently is only available to those immediate relatives whose sole ground of inadmissibility is unlawful presence and who can demonstrate that the denial of the waiver would result in extreme hardship to their U.S. citizen spouse or parent.
Under the proposed legislation, the class of non-citizens who may be eligible for a provisional waiver is expanded beyond immediate relatives of U.S. citizens to non-citizens in all statutorily eligible immigrant visa categories, including other family-sponsored immigrants, employment-based immigrants, certain special immigrants, and Diversity Visa program selectees, together with their derivative spouses and children. DHS also proposes to expand who may be considered a qualifying relative for purposes of the extreme hardship determination to include LPR spouses and parents.

What is unlawful presence?
Unlawful presence, which we refer to above as unauthorized period of stay, is in immigration terms, presence in the United States after the expiration of the authorized period of stay or any presence in the United States without being admitted or paroled. Under U.S. immigration law, individuals who are non-citizens who entered the United States without being inspected by a Customs and Border Officer (commonly known as an entry without inspection or EWI) or those who entered the country legally with a tourist visa but stayed past the authorized period of stay indicated on their I-94 or any extensions (commonly referred to as overstay), have all accrued unlawful presence.
Several exceptions are carved out in the regulations to make allowances for vulnerable individuals, such as minors, asylum applicants awaiting the adjudication of bona fide asylum applications, battered women and children, victims of human trafficking, and others. In general, however, individuals who were not inspected and admitted cannot get a green card in the United States. Note that individuals who obtained permission to come into the U.S. by fraudulent means, such as by making a knowingly false claim to U.S. citizenship has not been inspected and admitted, and thus also accrues unlawful presence from the date of arrival.

Who is Eligible for the 601A Waiver?

To be eligible for the provisional waiver under the current legislation, the applicant must:

• Be 17 years of age or older;
• Be an immediate relative of a U.S. citizen (spouse, unmarried minor child, or parent);
• Have an approved family petition;
• Have a pending immigrant visa case with the Department of State (DOS) for the approved immediate relative petition and have paid the DOS immigrant visa processing fee (IV Fee).
• Be able to demonstrate that refusal of applicant’s admission to the United States will cause extreme hardship to applicant’s U.S. citizen spouse or parent.
• Be physically present in the United States to at the time of filing the waiver application and provide biometrics.
• DOS did not initially act before January 3, 2013 to schedule an Immigrant Visa interview for the approved immediate relative petition upon which the provisional unlawful presence waiver application is based.
• Meet all other requirements for the provisional unlawful presence waiver, as detailed in 8 CFR 212.7(e) and the Form I-601A and its instructions.

To learn more about the 601A Provisional Waiver of Unlawful Presence, including eligibility and examples of possible successful cases, please read our blog post, Eligibility for 601A Provisional Waiver of Unlawful Presence here.

The waiver application process is lengthy and complicated. If you are an immediate relative of a US citizen looking to apply for a waiver, it is important to seek the advice of an immigration attorney to evaluate the best course of action and present your case in the clearest and best possible light. For more practical information and legal advice contact Scott Legal, P.C.