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

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

Immigration Form I-601 can be filed to seek waiver of various grounds for inadmissibility for entry into the United States. In general, to be eligible for entry, a person must meet the definition of "admissible." There are several grounds for inadmissibility including:

  • Ill health
  • Criminal convictions and behavior
  • Misrepresentations or fraud
  • And more

"Unlawful presence" in the United States is also a ground for inadmissibility. Note that there are three different kinds of "unlawful presence" that leads to three different time bars:

  • INA §212(a)(9)(B) -- creating three-year and ten-year bars -- in general, the "bar" refers to the fact that the person must remain outside the United States for at least three or ten years respectively, after a period of unlawful presence in the United States of six months or longer, for the three year bar, and one year of unlawful presence for the ten year bar.
  • INA § 212(a)(9)(C) -- creating a “permanent bar"

Form I-601A can be used to seek a waiver only for the three-year and ten-year bars. Note that Form I-601 is distinct from Form I-601A . An I-601 waiver can be used for criminal conduct, fraud, misrepresentation, and criminal issues. An I-601A is solely focused on someone’s unlawful presence and can be filed while the person is in the United States, before their consulate interview. See information on Form I-601A here.

The three-year bar applies to those who are unlawfully in the United States for a continuous period of 180 days, but less than a year (365 days). The ten-year bar applies to those whose unlawful presence extended beyond one year. In general, the bars apply to a person who departed or will depart from the United States and then seeks to return.

What "counts" as being "unlawfully" in the United States is legally complicated. So, you will need the help of experienced immigration attorneys to determine if you will be barred from re-entry for unlawful presence and whether an I-601 waiver is needed.

What is the I-601A waiver?

If a person seeking entry has triggered inadmissibility because of unlawful presence, as noted, a waiver can be sought by filing Form I-601. To be eligible, three conditions must be met:

  • The person seeking entry must have a "qualifying relative" in the United States -- a spouse or parent who is a U.S. citizen or lawful permanent resident. Children do not count.
  • There must be a showing extreme hardship to the qualifying relative if entry is denied
  • The I-601A petition must "warrant a favorable exercise of discretion"

If the person seeking entry does not have a qualifying relative, then Form I-601A cannot be used. Likewise, there must be a showing of extreme hardship, not just general hardship associated with not being able to be with a relative. Evaluating "extreme hardship" is based on the unique facts of each case. So, there are no general rules that will help predict whether "extreme hardship" will be found. The immigration services will consider various facts including:

  • Impacts on family ties
  • Economic impacts on the qualifying relative
  • Social and cultural impacts
  • Impacts on health conditions and care
  • Factors involving the country of origin
  • Factors involving the person seeking entry

But, importantly, even if extreme hardship is shown, there is no automatic granting of the petition. The immigration services have full discretion over these waivers. Again, if you are seeking an I-601A waiver, it is crucial to seek the legal advice and counsel of experienced and tested immigration lawyers.

Contact Yekrangi & Associates Today

For more information, contact the Orange County Immigration Attorneys at Yekrangi & Associates today. You are not alone and we will fight for you. Yekrangi & Associates works to meet a higher standard. Our first goal is your satisfaction. Contact us at (949) 478-4963 to schedule a consultation or complete our convenient “Get Your Consultation” form here. We are located in Irvine, California.

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