Introduction to Unlawful Presence in the United States

The I-601A Provisional Unlawful Presence Waiver, also known as the “provisional waiver,” is a specific immigration process designed for individuals currently residing unlawfully in the United States and have plans to put in an application for an immigrant visa at a U.S. Consulate or Embassy abroad. This provisional waiver allows individuals who have stayed in the U.S. longer than they were allowed to overcome the obstacle of being barred from re-entering the country for a significant period and ensures that those who qualify can continue their immigration process and avoid extended separation from their families and lives in the U.S.

Who May Qualify to Apply for an I-601A Provisional Waiver?

In order to qualify for an I-601A waiver, an individual must meet several key requirements:

• Be at least 17 years of age
• Be physically present in the U.S. and submit Form I-601A
• Be in the process of obtaining their immigrant visa, and have a case pending with the U.S. Citizenship and Immigration Services (USCIS)
• No additional grounds for inadmissibility other than the unlawful presence
• Prove that refusal of admission will cause extreme hardship to a qualifying U.S. citizen or permanent resident relative
• Must not be in removal proceedings that are either pending or haven’t been administratively closed
• Must not have a final order of removal, exclusion, or deportation

When Does an Unlawful Presence Start?

Unlawful presence begins when an individual remains in the U.S. beyond the expiration date of their authorized stay, as granted by the Secretary of Homeland Security or when an individual is present without being lawfully admitted or paroled into the country. In most cases, the day after the date listed on Form I-94 is typically when the authorized period of stay ends. If an individual leaves the U.S. after accruing unlawful presence, they may be barred from reentering for:

• 3 years, if they were unlawfully present for more than 180 days but less than 1 year;
• 10 years, if they were unlawfully present for 1 year or more during a single stay; or
• Permanently, if they were unlawfully present for more than 1 year in total during one or more stays, and they reenter or try to reenter the U.S. without being admitted or paroled.

However, there are some circumstances where unlawful presence does not accrue, meaning the time spent in the U.S. without authorization is not counted against the individual. These exceptions include:

• Asylees and Asylum Applicants
• Minors such as children under the age of 18
• Battered Spouses and Children
• Victims of Severe Forms of Trafficking in Persons

These are only a few examples where you might not get unlawful presence. If you’re worried about your immigration status and the possible consequences of unlawful presence, HBM Law Offices, LLC can help you figure out your options and protect your rights.

Does an Individual’s “Out of Status” in the United States Constitute Unlawful Presence?

Knowing the distinction between unlawful presence and out-of-status is crucial. Merely being “out of status” doesn’t automatically equate to “unlawful presence”, and this distinction is crucial, especially in the context of the 3-year and 10-year bars on re-entry.

Being “out of status” in the U.S. signifies that an individual has not adhered to the conditions of their visa or legal status within the country, such as overstaying the duration granted by a visa, violating the terms of work or study permits, or engaging in activities that are prohibited by the visa category. The consequences of falling out of status can be severe, potentially leading to inadmissibility, difficulties obtaining future visas, or even removal from the United States.

The main difference between being out of status and accruing unlawful presence is the nature of the violation and its duration. While being out of status doesn’t always mean you’re accruing unlawful presence. However, accruing unlawful presence automatically means you’re out of status. The 3-year and 10-year bars on re-entry apply to those who are unlawfully present and not merely those who have been in unlawful status. It is important for foreign nationals to understand these distinctions to avoid any severe consequences.

How to Apply for an I-601A Waiver?

To ensure a successful application, it is important to understand and adhere to the following steps in the I-601A Provisional Waiver process. The steps outlined below provide a broad overview; however, each stage involves numerous intricate tasks and subtleties that are essential for successful completion.

• Complete Form I-601A:

Fill out the Form I-601A, Application for Provisional Unlawful Presence Waiver and ensure all the required fields are filled.

• Gather Documents:

Collect all the required documents, such as, evidence of your relationship to the qualifying relative, i.e. U.S. citizen spouse or parents, proof of their U.S. citizenship or lawful permanent resident status, and documentation demonstrating the extreme hardship they would face if you were not granted a waiver and denied admission to the U.S.

• Submit the Application with the filing fee:

Submit your completed application along with the supporting documentation and the $795.00 filing fee to the designated USCIS Lockbox Facility. Ensure you use the correct address based on your chosen delivery method to prevent processing delays.

• Biometrics Appointment and Attend an Interview:

You will be required to attend a biometrics appointment to provide fingerprints, photographs and other identification information. Thereafter, you will be scheduled for an interview where you will be assessed the eligibility for the provisional waiver.

• Approval and Consular Processing:

The USCIS will notify you once they have made a final decision on your provisional waiver application, which may take several months. If approved, you can then proceed to the consular processing phase at a U.S. Consulate or Embassy in your home country to obtain an immigrant visa. After fulfilling all the requirements and receiving your visa, you can return to the U.S. and begin your journey as a Lawful Permanent Resident allowing you to live and work in the U.S. legally.

How Can HBM Law Offices Help?

The I-601A Provisional Waiver process can be complex and overwhelming, but with the guidance of HBM Law Office’s experienced immigration attorney, navigating this process can be less daunting. Our licensed Iowa Immigration Attorney will work closely with you to gather the necessary documentation, guide you through each crucial step and assist you in maximizing your chances of a successful I-601A Provisional Waiver application, which can ultimately lead to reunification with your family in the United States. Connect with our experienced I-601A Waiver Attorney at HBM Law Offices in Iowa today and take the first step towards a smoother immigration journey.