How to Get Family-Based Green Card With I-601A Waiver While in Court Fighting Deportation

If you are currently in removal (deportation) proceedings and have a U.S. citizen spouse, parent (if you are an unmarried minor), or child over the age of 21, you might be eligible to apply for a family-based green card and (in order to overcome any unlawful U.S. presence of six months or more) a waiver of your unlawful presence in the United States. Until recent years, applying for such a waiver was impossible without leaving the United States and facing penalties that barred return for several years, but the I-601A unlawful presence waiver changed this.

The sections below detail the steps needed to take advantage of this waiver if you are currently in removal (deportation) proceedings, meaning the U.S. government has called you to attend hearings to discuss whether you should be deported. This is a multi-step, complex process, which must go primarily through the court rather than normal channels.

Step One: U.S. Citizen Relative Files I-130 Petition for Family Member

First, your U.S. citizen spouse, parent, or child over the age of 21 must file an I-130 petition on your behalf, asking to serve as your sponsor for U.S. lawful permanent residence (a green card). Your petitioner must send the I-130 to U.S. Citizenship and Immigration Services (USCIS), after which the petitioner will get a receipt notice and finally an approval or denial.

For more detailed information on the I-130 process, see Filling Out, Submitting Form I-130 for Parents of a U.S. Citizen, Preparing an I-130 Visa Petition for the Immigrating Spouse of a U.S. Citizen, or Filling Out, Submitting Form I-130 for Unmarried, Minor Child of U.S. Citizen or Permanent Resident.

Step Two: You Apply to USCIS for an I-601A Waiver

If USCIS approves the I-130 your relative filed for you, you can apply for an I-601A waiver. For more information on preparing the paperwork, see Filling Our Form I-601 A to Request a Provisional Waiver. You will need to submit your completed waiver application, complete with supporting documents, to USCIS (not to the court) while you are still in removal proceedings.

Your immigration attorney can ask for a continuance (more time) in your removal case while this petition is pending a decision by USCIS.

Step Three: Have Your Removal Case Administratively Closed or Terminated in Immigration Court

Depending on the immigration court's particular requirements, you might be required to show proof that USCIS approved the I-130 petition and/or I-601A waiver. Once you have these documents, your immigration attorney can file a motion to administratively close or terminate your removal proceedings with the immigration court. This ends your removal proceedings so that you can go forward with the normal application procedures, or what's known as consular processing, in your home country.

Step Four: You Leave the U.S. for Consular Processing and Return as a Lawful Permanent Resident

The last step, after your case has been administratively closed or terminated by the immigration court, is to undergo consular processing abroad. This is the same procedure every green card applicant goes through. Once your I-130 petition is approved, USCIS will send it to the National Visa Center (NVC) and you will be scheduled for an interview at the U.S. consulate in your home country. You'll also have to attend a medical exam and pay visa application fees.

After you attend your interview, the consulate will process your case and grant or deny your U.S. immigrant visa. If your immigrant visa is granted, you will return to the United States and be granted legal permanent or conditional residency upon your arrival. Your actual green card will arrive some weeks later (assuming you've paid the USCIS immigrant fee).

Getting Legal Help

Because the process of applying for the petition, waiver, and order from an immigration court are complicated, you should consult an experienced immigration attorney before making a decision on whether this is right for you, and for help with this process. This type of application involves more than just filling out forms; the attorney will need to collect evidence and draft a cover letter or memo explaining how it all fits together and why the law and facts support a waiver and grant of permanent residence.