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What is the difference between an I-601 and I-601A waiver of inadmissibility?

By October 6, 2022Immigration
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Forms I-601 and I-601A are used by applicants for an immigrant visa (i.e., a green card) who are otherwise ineligible for that benefit because they are subject to one or more grounds of inadmissibility.  For example, Applicants may be facing the 3- or 10-year bar if they have accumulated more than 6 months or 1 year of “unlawful presence,” which can result from staying in the United States beyond the expiry date as noted in their I-94 Arrival-Departure Record.  Other applicants may have a criminal conviction in their record that renders them inadmissible.

Commonalities of I-601 and I-601A

Forms I-601 and I-601A are both used to request a waiver of inadmissibility. Both applications, though, are judged from the same standard, which is: whether an applicant’s U.S. citizen spouse or parent would suffer “extreme hardship” if the applicant is refused admission into the United States.

It is important to note here that the I-601 and I-601A waiver is only available to applicants who has a U.S. citizen or lawful permanent resident spouse or parent (the “qualifying relative”). Fiancé(e)s of a U.S. citizen can also apply for an I-601 in the context of applying overseas for a K visa (the visa to enter the United States for the purpose of getting married to a US citizen within 90 days), but in this case the I-601 is granted “conditionally” in the context of this marriage.

The criteria for judging “extreme hardship” is laid out in Matter of Cervantes-Gonzalez, 22 I&N Dec. 560 (BIA 1999).  This includes the U.S. qualifying relative’s family ties outside the United States and lack of ties to the country where the applicant lives; financial impact of departure from the United States; the significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.  These relevant factors are considered in the aggregate, and USCIS will ask whether the combination of all factors would take a particular case beyond the hardship ordinarily expected from leaving a country.

Differences between I-601 and I-601A

An I-601A is a specific type of waiver that is used by immigrant applicants in the United States, who wish to overcome the 3-year and 10-year bar for unlawful presence in particular.  The I-601A does not cover other grounds of inadmissibility, such as criminal grounds; the I-601A also can only be used by applicants who are already in the United States.

If the I-601A petition is approved, the applicant is given the permission to depart the United States and apply at a foreign consulate for an immigrant visa. Importantly, with an approved I-601A, the applicant will be exempt from the 3-year or 10-year bar and be allowed to receive this immigrant visa and enter the United States promptly.

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