Looking to stay with your family in the United States after overstaying?

The I-601A Provisional Waiver is a process designed to allow certain immediate relatives of U.S. citizens who are ineligible for lawful permanent residency (green card) due to unlawful presence in the United States to apply and obtain approval for a provisional waiver of the unlawful presence bar before leaving the U.S. to apply for an immigrant visa at their home country.

Eligibility

• To be eligible, an individual must be an immediate relative of a U.S. citizen or Legal Permanent Residents, which includes spouses, parents, and unmarried children under 21. A provisional waiver is also available for employment beneficiaries and diversity lottery winners. The individual must have an approved immigrant visa petition (form I-130) and have no other inadmissibilities.
  

Unlawful Presence

• The provisional waiver is specifically for individuals who have been unlawfully present in the United States for a continuous period of more than 180 days. Voluntarily departing the U.S. triggers the 3 or 10 year bar even if it is to attend an immigrant visa abroad.

Consular Presence 

• The I-601A Provisional Waiver is filed and adjudicated while the individual is still in the United States before they depart for consular processing of an immigrant visa.

Stateside Processing

• Unlike the traditional I-601 waiver process, where individuals would have to leave the U.S. first and then apply for a waiver from outside the country, the I-601A allows for stateside processing, drastically reducing the time of separation from family.

Approval and Departure

• If the provisional waiver is approved, the individual can then depart the U.S. to attend an immigrant visa interview at a U.S. consulate in their home country. If successful and no other grounds of inadmissibility are found by the consular officer, the immigrant will re-enter the U.S. with an immigrant visa and receive the green card at their home address.

Risk of Denial

• It’s important to note that approval of the provisional waiver does not guarantee approval of the immigrant visa at the consular interview. There is still a risk that the immigrant visa could be denied on other grounds, which is why it is necessary for an experienced immigration attorney to review the case for other inadmissibilities.

What are the steps of the I-601A Provisional Waiver?

1. File Immigrant Petition
   U.S. citizen family member submits an immigrant petition (e.g., Form I-130) for the foreign national.
2. USCIS Approval
   USCIS approves the immigrant petition, and the case moves to the National Visa Center (NVC).
3. File I-601A Waiver
   Foreign national files Form I-601A with USCIS for a provisional waiver of the unlawful presence bar.
4. Biometrics Appointment
   Attend a biometrics appointment for fingerprinting and identity verification.
5. USCIS Decision
   USCIS reviews and decides on the I-601A waiver application, granting a provisional waiver if approved.
6. Consular Processing and Entry
   The foreign national departs the U.S. for consular processing, attends a medicals exam, a biometrics appointment, and an immigrant visa interview, and upon approval receives an immigrant visa stamp authorizing them to enter the U.S. as a lawful permanent resident.