Tips on filling out the USCIS application for a provisional waiver of the three- and ten-year time bars for past unlawful presence in the United States.
U.S. Citizenship and Immigration Services (USCIS) Form I-601A, titled "Application for Provisional Unlawful Presence Waiver," and also known as the "stateside waiver," is available for free download on the Forms page of the USCIS website. Applicants can now use it to file for a provisional waiver.
What Form I-601A Is Used For
First, a little background: Form I-601A is a specialized waiver-request form—closely related to the more generic Form I-601 that's used by any immigrant applying for a waiver of inadmissibility in order to overcome a barrier to obtaining a green card. For example, an immigrant might use Form I-601 to ask the U.S. government to overlook the fact that the visa or green card applicant is inadmissible based on past commission of a crime or fraud, or excessive unlawful presence in the United States.
Form I-601A, however, has a more specialized use: It's for certain close relatives of U.S. citizens and lawful permanent residents seeking a waiver of the three- and ten-year time bars for unlawful presence, and doing so in advance of leaving the U.S. for their immigrant visa (green card) interview at a U.S. consulate in their home country.
Let's say, for example, that you are an American citizen, married to a Mexican man who crossed the U.S. border with the help of a "coyote" two years before. Based on the legal entry, the only allowable option, procedure-wise, is "consular processing," in which your husband attends the final immigrant visa interview at a U.S. consulate in Mexico. (As someone who entered the U.S. without inspection, your husband is ineligible for adjustment of status.) But at the consulate, even if he meets the other criteria for a U.S. green card, they might punish him for his years spent in the U.S. by refusing to let him come back for ten years. This is exactly the type of situation that the provisional (sometimes called "stateside") waiver on Form I-601A is meant to help with.
The provisional waiver doesn't save your husband from attending the consular interview, nor will it grant him any immediate status in the United States. What it will do, however, could be quite beneficial. If your husband can show that his being denied a U.S. immigrant visa (the entry document that leads immediately to a green card) would cause you, as his U.S. citizen spouse, "extreme hardship," he can apply for a waiver of inadmissibility—and do so BEFORE leaving the U.S., rather than as a follow-up to his consular interview. (Or, if he happens to have a U.S. citizen parent or parents, he can also or alternatively show that being denied the visa would cause extreme hardship to them.)
This process removes much of the uncertainty that people faced before. If the waiver is approved, and your husband is otherwise admissible to the U.S., leaving for the consular interview should be relatively safe, and lead quickly to legal status in the United States.
For further details on this waiver, see Who Is Eligible for Provisional Waiver of Three- or Ten-Year Time Bar and How to Apply for Provisional Waiver of Three- or Ten-Year Time Bar.
Information You'll Need to Provide on Form I-601A
Here's what you will be asked to fill in on Form I-601A.
- Your identifying information. This includes name, Alien Registration Number (A#, which you will have only if you have submitted previous applications for immigration benefits or been in removal/deportation proceedings—if the latter is true, definitely see an attorney before proceeding with this application), and Social Security number, if you have one (which you should only have if you were authorized to work in the U.S.).
- Your address. You are allowed to use a mailing address, but must still enter your actual address. The Department of Homeland Security has specifically said that it will not use this information to attempt to deport immigrants (unless they are criminals or threats to public safety).
- Your contact information. This includes telephone number and email address.
- Your country of birth and citizenship information.
- Information about your last entry to the United States. You will need to enter the date, place (city and U.S. state), and manner of entry, which was most likely "Entry Without Inspection" or "EWI." (If you had entered the United States legally, with a visa or visa waiver, chances are you are eligible to adjust status without leaving the U.S., and therefore have no need for this provisional waiver.) Don't worry that you're revealing a big secret here—most of the people using this form also entered the U.S. without inspection.
- Information about your previous entries to the United States. This section is more problematic. If you have entered the U.S. without inspection more than once, it's possible you have become subject to a "permanent bar" to U.S. immigration, for which no waiver is available. Consult an attorney, and see The Permanent Bar to Immigration for Certain Repeat Violators for more information on this.
- Information about your immigration or criminal history. You'll need to truthfully answer questions about past crimes, immigration violations and fraud, and other issues that might make you inadmissible for reasons other than unlawful presence. A "Yes" answer to any of these will result in denial of your provisional waiver application. But resist the temptation to lie! Doing so can get you into bigger trouble than the original ground of inadmissibility. Consult an immigration attorney if you aren't sure you can truthfully answer "No" to any of these questions. When you visit the attorney, bring any evidence you have concerning the issue, such as police or court records.
- Information about the petitioner, that is, the employer or relative who filed a visa petition for you, or yourself if you self-petitioned on Form I-360 or entered the diversity visa lottery. You will need to supply information about the petition approval. You need to have received this approval before going forward with this provisional waiver application.
- Information about your qualifying relative. This is probably the same person as in the previous section, but not necessarily. It is the person (or persons) who will suffer extreme hardship if your waiver application and thus green card is denied. This person must be your U.S. citizen or lawful permanent resident spouse or parent—hardship to your children does not count for the provisional waiver.
- Additional information. You will be given space to add information that is relevant to your application. Another option is to attach a written statement summarizing your request (which is a task that many people find they prefer a lawyer's help with).
- Signature. Don't forget to sign the form, or USCIS will return the whole packet to you.
- Signature of person preparing this application. If an attorney or accredited representative is helping you, he or she will fill out this information.
Getting Legal Help
Remember, filling out the form is not enough by itself to qualify you for a provisional stateside waiver of unlawful presence. You will need to provide extensive documentation showing that you are eligible for this waiver, as described in How to Apply for Provisional Waiver of Three- or Ten-Year Time Bar. For assistance, consult an experienced immigration attorney.
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