A provisional unlawful presence waiver makes it easier for individuals to deal with inadmissibility into the United States due to situations involving unlawful presence. Unlawful presence can occur if you overstay your visa or come into the country without permission.

Applying for a provisional unlawful presence waiver can reduce the time you must stay outside of the United States before you can get a green card in some instances. However, since this waiver only addresses unlawful presence, it’s important to realize there are many other potential barriers to re-entry into the United States. Consulting an immigration lawyer before you take any action or leave the country in pursuit of lawful entry can be a good idea. An experienced immigration lawyer can help you understand your options and what potential obstacles you might face.

How Does a Provisional Unlawful Presence Waiver Work in Basic Terms?

This section provides a basic summary of how the provisional unlawful presence waiver works. Please note that immigration law can be complex, and situations that might require an immigration waiver often involve several factors. Consulting with an immigration lawyer about your case can ensure you understand how your situation’s details might impact the outcome.

Provisional unlawful presence waivers are also called 601a waivers. That’s because they’re named after the form you must submit when applying for the waiver. The full legal name of the form is I-601A, Application for Provisional Unlawful Presence Waiver.

The purpose of the 601a waiver process is to help protect family structures and allow families to be together as much as possible, even when dealing with a potential immigration matter.

Without the waiver, people seeking a green card after an unlawful presence might be separated from their families for three to 10 years. That’s because they might leave the country to go through the visa process and be denied entry because of their previous unlawful presence.

What Is Unlawful Presence, Exactly?

If you spend time in the United States after the end of your visa status (or time without a visa), for whatever reason, you start accruing unlawful time. You accrue unlawful time immediately if you enter the country without going through proper immigration channels.

After accruing a certain amount of unlawful presence, if you voluntarily leave the United States, you can be barred from re-entering for a certain period of time based solely on the fact that you accrued unlawful presence.

How Long Can You Be Kept From Re-entering the Country Because of Unlawful Presence?

Someone with 180 days or more (but less than one year) of unlawful presence can be barred from re-entering the United States for three years. Someone with a year or more of unlawful presence can be kept from re-entering the country for 10 years.

Applying for a 601a waiver means asking for the unlawful presence to be ignored when someone is considered for re-entry to the country. The unlawful presence won’t lead to a three- or 10-year ban if the waiver is granted.

Who Can Qualify for the Provisional Unlawful Presence Waiver?

To successfully apply for a 601a waiver, you must be present in the United States. This is not a waiver you can apply for if you have already left the United States and are seeking re-entry. You must also agree to — and cover the cost of — biometrics. Usually, this means allowing your fingerprints to be taken. Those costs are on top of the fee for filing the 601a form.

Other requirements include:

  • Being age 17 or older
  • Having a valid and relevant immigrant visa case pending 
  • Ability to demonstrate that your not being able to enter the United States may cause extreme hardship for your parent or spouse (who must be a legal permanent resident or citizen of the United States) 

You also have to meet other specific eligibility requirements and must believe, in good faith, that there aren’t any other factors that could bar you from re-entry into the country outside of your unlawful presence. 

What Happens After a Provisional Unlawful Presence Waiver Is Granted?

Once the provisional unlawful presence waiver is granted, the individual in question typically must leave the United States for a short time period. This is because you can’t convert an unlawful presence into a legal one while you’re still in the country in many cases. To get a consular interview and be approved for a visa and green card, you must leave and then re-enter upon approval.

The 601a waiver is so critical because it provides peace of mind that the person who leaves is not doing so for three to 10 years. However, it’s important to note that the waiver doesn’t guarantee approval and doesn’t even guarantee that you can re-enter the United States. It simply means you won’t be barred solely because you had unlawful time in the country.

Get Help From an Experienced Immigration Attorney

While the provisional unlawful presence waiver is a great tool to help families remain together as much as possible as someone seeks a better immigration status, you can see that other factors matter too. Working with a lawyer experienced in immigration waivers can help ensure you consider all the details and make the best potential choices for your case.

To find out more about how legal representation can make a difference in your immigration case, contact Landerholm Immigration, A.P.C. today. We bring our knowledge and a winning attitude to complex immigration cases.