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

If you are a foreign national who's 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. But there's a legal issue surrounding how much time you've spent in the United States without permission. In order to overcome any unlawful U.S. presence of six months or more, you'd need to add a request for a waiver of your unlawful presence in the United States to your green card application. Until recent years, applying for such a waiver was impossible without leaving the United States and potentially facing penalties that barred return for several years. But the I-601A unlawful presence waiver changed this. It allows people to get a decision on whether they'll be granted the waiver before leaving the United States, so they can decide to stay put if the answer is "no."

The sections below detail the steps needed to take advantage of the unlawful presence I-601A waiver if you are currently in removal (deportation) proceedings, meaning the U.S. government has called you to attend administrative court hearings to discuss whether you should be deported. This is a multi-step, complex process, which must go primarily through the immigration court rather than normal agency 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 not to the court, but to U.S. Citizenship and Immigration Services (USCIS), which is the administrative agency that normally handles such applications.

After filing, the U.S. petitioner will get a receipt notice from USCIS, followed by either an approval or denial.

For more detailed information on the I-130 preparation and submission 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 petition that your relative filed for you, you can next 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 again need to submit your completed waiver application, complete with supporting documents, to USCIS (not to the court), even while you are still in removal proceedings.

The I-601A waiver covers only unlawful presence. If you are inadmissible to the United States for any other reasons, like prior fraud, criminal convictions, or reentry after deportation, you might also need a traditional Form I-601 waiver. Consult your attorney to evaluate any additional grounds of inadmissibility. Also see Inadmissibility: When the U.S. Can Keep You Out.

Your immigration attorney can ask the immigration judge for a continuance (more time) in your removal case while this application is awaiting a decision by USCIS.

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

With any luck, USCIS will approve both the I-130 and the waiver request. Then, depending on the immigration court's particular requirements, you might be required to show proof of these USCIS approvals. Many immigration courts prefer or require that the case be terminated rather than administratively closed before consular processing (in which the foreign national heads abroad for a consular interview) can continue.

Once you have the needed approval, your immigration attorney can file a motion to administratively close or terminate your removal proceedings with the immigration court. To speed up this step, your attorney can talk to the government attorney about agreeing to a joint motion to terminate with the Department of Homeland Security (DHS).

This would end your removal proceedings so that you can go forward with the normal green card application procedures, or what's known as consular processing, in your home country.

Step Four: 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 many green card applicants goes through (unless they're among the lucky few who are eligible to adjust status in the United States).

USCIS will send its approval of your I-130 petition to the National Visa Center (NVC), which will take over as an intermediary between USCIS and the consulate. It will coordinate with you about additional documents and forms you need to submit, then help you schedule an interview at the U.S. consulate in your home country. (Get a preview of what's ahead in The Day of Your Consular Interview for a U.S. Visa.)

You will also have to attend a medical exam and pay various 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 have 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. See, for more information on what's involved, Proving "Extreme Hardship" to a U.S. Relative for Immigration Purposes and these other articles on the I-601A waiver.