Applying for a Waiver of Unlawful Presence in the U.S.: I-601 vs. I-601A
If you are deemed ineligible for U.S. immigration due to certain grounds, you may seek a waiver by filing Form I-601 or Form I-601A. Common reasons for applying include (but are not limited to): criminal history, health-related issues, fraud/misrepresentation, or unlawful presence in the U.S.
| Form I-601 | Form I-601A |
|---|
| Used to waive multiple grounds of inadmissibility (e.g., health, criminal, public charge). | Specifically waives the 3-year or 10-year bar for unlawful presence. |
| Filed by applicants inside or outside the U.S., including those attending consular interviews abroad. | Filed only from within the U.S. by applicants eligible for biometrics submission. |
| Requires proof of extreme hardship to a U.S. citizen or lawful permanent resident (LPR) spouse/parent. | Also requires proof of extreme hardship to a qualifying relative. |
Key Requirement for Both Forms: You must demonstrate that your U.S. citizen or LPR spouse/parent would suffer extreme hardship if you are denied entry or removed from the U.S.
- Applicants whose immigration applications (e.g., Green Card, Temporary Protected Status, VAWA) were denied due to inadmissibility.
- Individuals applying for:
- Adjustment of Status (AOS)
- Consular Processing (outside the U.S.)
- NACARA, HRIFA, or VAWA benefits
Grounds of Inadmissibility Covered:
- Health-related issues (e.g., communicable diseases)
- Criminal history (e.g., drug offenses, moral turpitude)
- Immigration fraud/misrepresentation
- Membership in totalitarian parties
- Smuggling of migrants
- Prior deportation or unlawful presence (under NACARA, HRIFA, or VAWA)
Application Process:
- Complete Form I-601 and gather evidence of extreme hardship (e.g., medical records, financial dependency, psychological evaluations).
- Pay the filing fee ($930 as of 2023).
- Submit the form online or by mail to USCIS.
Pros and Risks:
- ✅ Approval allows continuation of immigration processes or retention of nonimmigrant status.
- ❌ Denial may terminate your application or lead to loss of status.
- ⏳ Long processing times (months to years) may restrict travel or reentry.
- Applicants currently in the U.S. who:
- Are 17+ years old.
- Have a pending immigrant visa case (e.g., approved I-130, I-140, or DV Lottery selection).
- Face a 3-year or 10-year bar due to unlawful presence:
- 180+ days but <1 year of unlawful presence → 3-year bar.
- 1+ year of unlawful presence → 10-year bar.
Application Process:
- File Form I-601A with supporting documents and fees ($630 + $85 biometrics fee) via mail to the USCIS Chicago Lockbox.
- Attend a biometrics appointment and possibly an interview.
- Wait for USCIS adjudication (17–33.5 months processing time).
- If approved:
- Depart the U.S. for a consular interview in your home country.
- Apply for an immigrant visa (no guarantee of approval).
Pros and Risks:
- ✅ Reduced uncertainty: Stay in the U.S. while USCIS reviews your case.
- ❌ No appeal rights if denied (but refiling is allowed).
- ⚠️ Visa denial risk: Approval of I-601A does not guarantee visa issuance (other inadmissibility grounds may apply).
Key Considerations
| Factor | Form I-601 | Form I-601A |
|---|
| Location | Filed inside or outside the U.S. | Filed only from within the U.S. |
| Processing Time | 6–18 months (varies by USCIS center) | 17–33.5 months |
| Extreme Hardship | Required for all applicants | Required for all applicants |
| Appeal Options | Limited options; refiling may be necessary | No appeals; refile or switch to I-601 |
Final Notes
- Consult an immigration attorney to assess eligibility and prepare a strong hardship case.
- USCIS updates fees and policies regularly—verify requirements before filing.
- For INA Section 212(a) details, visit: 8 U.S. Code § 1182.
Legal Disclaimer: This guide is for informational purposes only. Consult a qualified immigration attorney for case-specific advice.