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I-601 & I-601A Waiver Attorney in San Jose, CA, Helping Clients and Their Qualifying Family Members with the Application for a Provisional Unlawful Presence Waiver

An unlawful presence waiver, such as the I-601 or I-601A, is reserved for individuals residing in the United States who want to become green card holders but are facing disqualifying factors for issues such as fraud, criminal convictions, and illegal presence in the country. Depending on whether you are facing hardships that the courts consider to be “extreme,” you may be issued a provisional waiver. With this waiver in hand, you may now submit a green card application in hopes of obtaining lawful permanent resident status in the United States.

At the California law firm of Yew Immigration Law Group, you will be represented by an immigration lawyer with decades of experience in the legal matters of the immigration process, including waiver applications, the securing of green cards, applying for U.S. citizenship, and defending clients through deportation proceedings.

Though our law office is based in San Jose, we provide immigration services to clients across the state of California, including the localities of San Diego, Oakland, Santa Clara, Alameda County, and Los Angeles County. To begin your confidential attorney-client relationship, please contact our firm by phone or website to schedule your initial consultation. You may call us at (408) 740-3474.

What is the Difference Between an I-601 Waiver and an I-601A Waiver?

While both are applications for waivers of inadmissibility for those who’ve been denied entry into the United States, the two types of immigration waivers do have their differences, and it is important that you and your immigration attorneys file the right type of waiver for you and your individual case.

The main difference between the two is that the I-601A Waiver is for those who’ve been denied the right to enter the U.S. because of an extended stay of unlawful presence in the U.S., which has resulted in a three-to-10-year ban. The I-601 Waiver, on the other hand, is for those who’ve been denied the chance to enter the U.S. based on other grounds of inadmissibility, such as health concerns, a criminal record, or extreme poverty. The I-601 form is for visa applicants who want an adjustment of status, such as a green card or Temporary Protected Status (TPS).

If you have had an unlawful presence in the U.S. for six months to one year, you may be hit with a three-year ban on returning to the country. If you’ve had over a year of unlawful presence in the U.S., then border protection may institute a ten-year ban. In such a case, we would recommend filing an I-601A Waiver application, which could prevent family separation and safeguard your place in the U.S. community. The I-601A Waiver applicant can reside within the U.S. when they submit the application. Upon filing, they may be asked to wait out the processing time outside the United States.

Also worth noting is that the definition of ‘qualifying relatives’ differs slightly between the two types of provisional waivers. While the I-601 Waiver sees a qualifying relative as anyone who is either a U.S. citizen or a legal permanent resident family member, the I-601A provisional waiver only sees U.S. citizens as qualifying relatives.

What Are Specific Grounds of Inadmissibility That May Result in an Individual’s Removal?

While the I-601A Waiver is for those who have maintained an unlawful presence in the U.S. and are facing removal, the I-601 Waiver is for those who customs and border protection agencies may deny entry based on all other grounds of inadmissibility.

These grounds of inadmissibility include:

  • Criminal records detailing past convictions or crimes of a particularly serious nature.
  • Extreme levels of poverty.
  • Immigration fraud and other types of fraud and white-collar crimes.
  • Lack of appropriate labor certifications.
  • Medical condition and/or a disease that may not be allowed to pass the border into America.
  • Misrepresentation is committed on any forms.
  • Prior removal order issued by the USCIS or other government agency.
  • Terrorist affiliations or suspected criminal intent.

What Circumstances May Disqualify Individuals and Their Families from Obtaining an I-601 Waiver or an I-601A Waiver?

It is possible for an individual to suffer a permanent bar from entering the United States. They may receive this bar if they maintained a year of unlawful presence in the U.S., then left the country, then reentered the country again without going through proper inspection and checkpoints. However, after the bar has been in place for a decade or more, you may submit a new waiver application.

Being a member of a criminal gang, even without having ever been convicted for criminal acts, may make it impossible for your waiver application to be accepted. Even having gang tattoos may result in the denial of permission to enter the U.S. Violations where a person was either convicted or has any pending criminal charges for drug crimes may also fail to be admitted into America.

Extreme cases of misrepresentation, such as fraud or sham marriages for the purpose of obtaining a green card or faked documents in a filing for asylum, may also be disqualifying. Additionally, if you lied about being a U.S. citizen or legal permanent resident, then you will face strict review and may not be deemed eligible to enter the U.S. again.

If you did attend or were not physically present for any past deportation proceeding in court, you may not find success in your attempt to reapply for a provisional unlawful presence waiver.

What Does it Mean to Suffer Extreme Hardship?

Proving that your qualifying relative would suffer extreme hardship is a fundamental requirement for both I-601 and I-601A waivers. Surprisingly, there isn’t any useful definition of ‘extreme hardships’ under U.S. immigration law. The concept of extreme hardship is examined under the totality of the circumstances.

An important tip to those who need one (or both) of these waivers is never to assume that you and your family’s circumstances would not meet the extreme hardship standard. Many people who are faced with the I-601 or I-601A waiver problem believe that they will be unsuccessful, and so they give up before they even begin. It is always worth taking the chance to determine your eligibility.

Is Extreme Hardship a Matter of Discretion?

The granting of an I-601 or I-601A waiver case is completely discretionary. An Immigration Judge or USCIS adjudicator (depending on when or how the waiver is made) makes a personal, subjective decision as to whether he or she thinks that qualifying extreme hardship has been established. But extreme hardship is not a defined legal term.

A totality of the circumstance is reviewed for determination. It’s been said, “like beauty, ‘extreme hardship’ is in the eye of the beholder.” You need an experienced immigration attorney who has dealt with many of these cases before to help you determine the best course of action for you and your qualifying relatives.

How Does a Waiver Application Get Approved?

The Board of Immigration Appeals (BIA) has said that extreme hardship depends on the facts and circumstances of each particular case. To prove extreme hardship and prepare for a successful I-601 immigration waiver involves storytelling.

To win the approval of your provisional waiver request, you have to introduce yourself and your family, explain your particular family dynamics and personal circumstances, and how the denial of your I-601 waiver would negatively impact your family (especially your qualifying U.S. citizen relative). And since each family is completely different, all I-601A or I-601 immigration waivers will take a unique angle.

What Are the Important Factors for Determining Extreme Hardship?

The following are some typical scenarios that have supported a finding of extreme hardship (keeping in mind that this is not an exhaustive list and that it is the totality of the circumstances that is evaluated):

  • The age of the alien, both at the time of their entry into the United States and at the time of the waiver application.
  • The age, number, and immigration status of the immigrant’s children and their ability to speak the native language and to adjust to life in the family’s home country of return.
  • The health condition of the alien or the alien’s children, spouse, or parents and the availability of any required medical treatment in the home country to which the alien would be returned.
  • The alien’s ability to obtain employment in the home country to which the alien would be returned.
  • The alien’s length of time that the immigrant was a permanent resident in the United States.
  • The existence of other family members who are or will be legally residing in the United States.
  • The financial impact of the alien’s departure.
  • The impact of a disruption of educational opportunities for the aliens and their families.
  • The psychological impact of the alien’s deportation, including in the instance of family separation.
  • The current political and economic conditions in the country to which the alien would be forced to return.
  • Family and other ties to the country to which the alien would be returned could provide support or, adversely, create tension or a threat to their life.
  • Contributions to and ties to a community in the United States, including the degree of integration into society.
  • Immigration history, including authorized residence in the United States.
  • The availability of other means of adjusting to permanent resident status.

This is not an exhaustive list and is not intended to cover all possible forms of hardships to the applicant or his/her loved ones. Also, even if no one single factor rises to the level of “extreme hardship,” the cumulative effect of numerous examples of normal hardship could meet the standard.

Further, to the extent applicable, each factor of extreme hardship should be examined from multiple perspectives. For example, how would the qualifying relative suffer if you were deported and that qualifying relative remained in the U.S.? How would the qualifying relatives suffer if they were forced to leave the United States to live with you?

I-601/I-601A Waivers Lawyers Can Provide Legal Advice Through the Difficult Process of Submitting a Hardship Waiver Application

Yew Immigration Law Group is based out of a law office in San Jose, CA, but our professional attorney provides immigration services to clients across the state of California, including the localities of Berkeley, Oakland, San Francisco, San Diego, Sunnyvale, and Los Angeles.

If you have questions about qualifying for an I-601 or I-601A waiver, our immigration lawyer and associates are here to evaluate your situation. Please contact our law firm to schedule a consultation. You can reach our San Jose law offices online or by phone at (408) 740-3474.