Schedule A Consultation (520) 882-8852

I-601 Unlawful Presence and I-601A Provisional Waiver

What is Unlawful Presence?

Lea esta pagina en español.

People who have lived in the United States without valid immigration status can accrue "unlawful presence."  Unlawful presence is important to be aware of, since it subjects people to several different kinds of "bars" of inadmissibility.  The most common bars of inadmissibility are referred to as the three and ten year bars.  This is how it works.

People who remain in the United States for more than six months without lawful immigration status are subject to the three year bar if they leave the United States and then apply to come back at a later date.  For those people who remained in the United States for over one year without lawful status, the ten year bar of inadmissibility is triggered when those individuals apply for admission to the U.S. at a later date in time.

Unlawful Presence Waivers Filed Outside of the United States

There is also a "permanent bar" of inadmissibility that applies to people who have accrued over one year of unlawful presence, and then leave the United States and attempt to return again.  Foreigners subject to the three and ten year bars who wish to return to the U.S. as immigrants (with resident green cards) may apply for an unlawful presence waiver by filing form I-601.  A successful I-601 unlawful presence waiver requires the applicant to show that an immediate relative would suffer extreme hardship in the absence of the immigrant who is applying to return to the United States.

The Provisional "Stateside" I-601A Waiver

Provisional waivers are extremely useful for people who are currently in the United States, and who almost always have never been deported.  For this reason, provisional waivers, or I-601A "stateside" waivers are different from the other kinds of waivers described on this website, since they do not apply to people living outside of the United States.

Many people who have been deported have heard a lot about the provisional waiver and mistakenly believe that it can be used to help them return to the United States.  The provisional waiver is an unlawful presence waiver for spouses of U.S. citizens, and parents of U.S. citizens who are over 21 years of age.  The unlawful presence waiver for people who are currently living outside of the United States is submitted on an I-601 application.  In contrast, those people who are currently living in the United States, and who generally have no prior immigration or criminal violations, are eligible to apply for the provisional waiver of unlawful presence with an I-601A application.

Unlawful presence waivers are generally utilized by people who are applying for residency, or green cards.  For nonimmigrants who are applying for visitor visas or border crossing cards, the Section 212(d)(3) waiver is normally required.