One way to solve the overstay-inadmissibility problem described above is to apply for the green card using a procedure called “adjustment of status.” That means submitting an application for U.S. residence to, and more importantly attending an interview at, an office of U.S. Citizenship and Immigration Services (USCIS), without leaving the United States. The great thing about that is that only applicants who are outside the United States and seeking to return are affected by the unlawful presence ground of inadmissibility; therefore, by adjusting status, you wouldn't need to leave the U.S. for the consular interview that is normally part of the green card application process.
Not everyone is eligible to “adjust status,” unfortunately. Those who aren't would need to apply for a waiver of that inadmissibility if they need to the U.S. and seek to return. But because this article is focused on someone who:
it encompasses the few people whose unlawful presence in the United States does not make a difference in their eligibility to use this U.S.-based adjustment of status procedure.
CAUTION: Anyone reading this who entered the U.S. without permission or inspection, or whose green card eligibility is based on a family or employment relationship that puts them in the “visa preference” category with a “priority date” in a category where a long waiting list has developed, is probably not eligible for adjustment of status. They will have to go the consular interview outside the United States.
The bottom line: Choose to apply via adjustment of status rather than consular processing if you're eligible to do so, and you will not need to file a request for a waiver (most likely using either Form I-601 or I-601A).
For applicants who must leave the U.S. for consular processing, there are two main waiver forms used to request that the U.S. government forgive or overlook their unlawful presence and grant them a marriage-based green card regardless.
The I-601A waiver tends to be the preferred one, because applicants can submit the application and receive an answer from USCIS before departing the United States for their consular interview (and risking that the waiver request gets denied and they're stuck outside for three or ten years, depending on the length of their unlawful stay). But not everyone qualifies to request one, not only because of strict eligibility criteria, but because this particular waiver can be granted by USCIS only if the applicant has no other grounds of inadmissibility that require a separate waiver.
The other possibility is the I-601 waiver, which you would not be able to receive an answer to until you're already in your home country attending your consular interview.
There's nothing automatic about these waivers, and you'll need to do far more than fill out a form. Most notably, you'll need to prove that your U.S. relatives will suffer extreme hardship if you aren't granted the waiver and U.S. residence. Learn more about waivers of inadmissibility and how to apply.
See the Marriage-Based Visas and Green Cards section of Nolo’s website or get the book Fiance and Marriage Visas: A Couple’s Guide to U.S. Immigration, by Ilona Bray (Nolo), which contains comprehensive, easy-to-understand instructions on eligibility and application procedures. And for a personal analysis of your situation and assistance with gathering documents, preparing paperwork, and more, consult an experienced immigration attorney.
]]>(Note that there's a different form and discussion you'll want to turn to if you're looking for a provisional waiver of unlawful presence in the U.S. and if this is your only ground of inadmissibility: the I-601A waiver.)
What, exactly, you will need to show in order to receive an I-601 from USCIS waiver depends partly on the reason you are inadmissible and thus ineligible for a U.S. visa or green card in the first place. For example:
For further detail, see USCIS's instructions to Form I-601.
Most types of I-601 waiver applications include an "extreme hardship" element. In other words, the applicant would need to show, as part of receiving waiver approval, that a qualifying relative (a member of the immigrant-applicant's immediate family) is a U.S. citizen or permanent resident and that that person would suffer extreme hardship if the immigrant were to be denied U.S. entry or removed from the U.S., or if the whole family had to move overseas in order to be together.
The chance of your application being approved also depends in great part on the strength and quality of the evidence you submit. Adjudicators will review your evidence and balance the hardships you present with the existence of any aggravating and mitigating factors.
In addition to the various hard-and-fast legal standards, realize that the decision-making process for I-601 waiver applications is somewhat subjective. The ultimate decision will depend on the discretion of the U.S. immigration officer reviewing your application, and that officer’s interpretation of your circumstances.
The term "extreme hardship" is not defined in U.S. immigration law. Consequently, the decision-makers have greater discretion to approve or deny I-601 waiver applications than they do with other U.S. immigration benefits. One of the most common reasons U.S. immigration authorities deny an I-601 waiver application is insufficient evidence of extreme hardship to qualifying U.S. relatives. Sometimes this is simply due to the applicant not having submitted enough convincing documentation.
No matter how sad your qualifying relative might feel if you were denied a visa or green card (or if your relative had to leave the U.S. to be with you), you can assume that every other separated family will feel much the same. That's not going to be viewed as "extreme" enough.
You'll need to provide evidence of something more with your application. If, for example, your relative would be forced to move to an unfamiliar country outside the U.S., you'd want to alert USCIS to the fact that your relative doesn't speak the language, has no other family or friends there, and would perhaps lose their livelihood or face particular health challenges. (Denials are more common in cases where the opposite is true, and the person will be heading to an ancestral country with a familiar language.)
The more documentary evidence you can provide, such as a letter from the family member's employer saying it would be impossible to continue the same job abroad, or a letter from a doctor saying a medical condition would be hard to treat, the better.
If your relative would remain in the U.S. without you, a denial is more likely if your relative is healthy and self-sufficient, and doesn’t need your help taking care of other family members in the United States. The opposite is true if you can show, for example, that the non-citizen is the primary wage earner, but would lose that income, while the U.S. citizen staying behind would have to care for a child (perhaps a special-needs child) with no source of income.
The chances of your I-601 waiver application being denied might be higher if aggravating factors are present in your immigration, criminal, or other history. Aggravating factors include, but are not limited to, prior violations of immigration law, criminal charges, arrests, convictions, and marriage fraud.
Any of these factors on your qualifying U.S. relative's record could also be viewed as aggravating.
When you prepare your I-601 waiver application, it is important that you identify all aggravating factors that could weaken your application. Keep in mind when preparing an I-601 waiver application that the cause of your inadmissibility may itself be an aggravating factor and negatively affect your chance of approval. Even if the law permits you to file a waiver application, your chances of success are less if you were found inadmissible for fraud or willful misrepresentation, or for criminal grounds.
If you have aggravating factors present, you will need to show a much higher level of extreme hardship for your qualifying relative. You will also want to submit evidence of mitigating factors. Mitigating factors can overcome aggravating factors, particularly if they are directly related.
For example, if you have a criminal background, evidence that you participated in a rehabilitation program is a mitigating factor that could strengthen your application. If you are inadmissible because of unlawful presence in the U.S., evidence that you acted in good faith and believed you were complying with immigration laws is a mitigating factor that could strengthen your application.
In the event that USCIS denies your waiver request, you potentially have the option to file a motion to reopen or reconsider, or submit a new application. Your chances of approval will not necessarily increase, however, unless you are able to figure out what went wrong the first time persuade a new decision-maker that your qualifying relative really would experience extreme hardship, or that you otherwise meet the standards for the waiver in question.
The level of discretion and subjectivity involved in adjudicating I-601 waiver applications means one can never guarantee a positive outcome. It's always a good idea to consult an attorney. who has extensive experience filing waiver applications. It is through experience that attorneys can identify those factors that can make or break an application and learn what types of documentation and arguments will most effectively persuade USCIS to grant one.
]]>Although USCIS has never released its standard processing times for this application, its goal is to make a decision within 90 days.
Unfortunately, there is no guarantee that you will receive a decision on your waiver application within 90 days, and it is not uncommon for USCIS to take longer than that. Moreover, unlike with some immigration applications, no arrangement exists by which you can pay a “premium processing” fee to guarantee speedy handling of an I-601A waiver application.
Your best hope if you really need a quick decision is to make a request to have your waiver request “expedited.” USCIS doesn't grant such requests often, however. The agency requires a solid reason for making the expedite request, such as a medical, humanitarian, or similar emergency, or the possibility of severe financial loss to a business or a person. It also requires showing that the waiver applicant didn't cause the time-crunch, by being late to file the benefit request or to respond to agency requests for additional evidence.
To ask for an expedite, you can either submit a cover letter with your waiver application requesting the expedite, or send the request later, via the USCIS Contact Center at 1-800-375-5283. Or, you could try requesting an in-person appointment directly, via USCIS's online "My Appointment" portal. This is new as of late 2023, so it's impossible to assess whether it will be faster than going through the Contact Center, or what happens if you try both at once. Getting an appointment through this portal isn't guaranteed; the agency will evaluate your need after you submit the request.
With your expedite request, you will need to provide documentary proof of any facts that you are claiming. For instance, if you were pregnant and worried about traveling later in your pregnancy, you would need to provide a letter or records from your doctor verifying the pregnancy and detailing any expected complications that could make it difficult for you to travel later. But in such a situation, if the normal wait for I-601A decisions is already long enough, USCIS could figure that your child will be plenty old enough to travel by the time you are scheduled for a visa interview.
Again, nothing is guaranteed. This is a “discretionary” decision, meaning USCIS is free to make its own judgment about who deserves what. (See 8 C.F.R. § 212.7(e).)
In the meantime, if you are in the U.S. and presumably with your U.S. spouse, that could make your waiver request less likely to gain approval than that of someone who is separated from close family.
For more about the waiver application process, see How to Apply for Provisional Waiver of Three- or Ten-Year Time Bar. You could also make your life easier by hiring an experienced immigration attorney to handle your family visa case. The attorney can analyze the facts of your case and spot any potential problems, prepare the paperwork, and monitor the progress toward approval.
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