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How to Understand Unlawful Presence Waivers

On Behalf of | Nov 10, 2021 | Immigration

Immigration law in the USA, including California, involves past actions or orders that create hurdles in the immigration process. It can be stressful to find out that a loved one is inadmissible to the United States, but certain measures under immigration law could help their case.

Why would someone be inadmissible to the United States?

The reasons for inadmissibility include criminal activity, national security, health, public charge, lack of labor certification, prior removals, prior immigration violations, misrepresentation, and fraud. One of the most common grounds is unlawful presence, which accrues when someone stays in the United States without authorization or a valid visa.

People can ask for a waiver of unlawful presence for entry. Immigrants outside of the country need Form I-601. Immigrants within the U.S., but are without lawful entry, need Form I-601A. (Note: There are reasons people in the U.S. would still need a Form I-601.)

Immigration unlawful presence waivers and how to apply

Immigration unlawful presence waivers are complex and require an immigrant to have certain immediate adult family members who are already U.S. citizens or have green cards. Immigrants can use Form I-601 when they are found to be ineligible for immigration to the United States. This form helps immigrants apply for a waiver when they are applying for an immigrant visa.

Form I-601A is for immigrants who must leave the United States and apply for U.S. permanent resident status at a U.S. embassy because they don’t have lawful entry into the United States. There’s a ban ranging from 3 to 10 years depending on how long the immigrant overstayed, but with the hardship waiver, an immigrant can skip the ban period. The immigrant must apply for the waiver before leaving the country.

These applications are available online or through the mail. If there’s a denial of the form, a person can appeal, or request to reopen or reconsider the decision.

For Form I-601A, there will be a background check before the immigrant departs the United States and applicants must be at least 17 years old.

Hardship waivers are easy to ask for but complex to get through. A person must get the correct form for their circumstances to help with the procedure, so it’s important to read the forms carefully before filling them out.

If you have any questions about your inadmissibility to the United States, please contact our office to schedule a consultation for further guidance.