Barred from entering the U.S. for unlawful presence? The I-601A provisional bar waiver allows a foreigner to remain in the U.S. while the bar waiver application is processed. If approved, the foreigner must at some point depart the U.S. and apply for a proper visa to return lawfully.

Foreigners who entered the US unlawfully and marry a U.S. citizen cannot obtain a green card stateside due to the unlawful entry.

Allan

They must depart the US and return on a marriage visa. However, when they depart they will often trigger a 3 or 10 year bar due to unlawful presence. The purpose of an I-601A is to try and set the bar aside.

Immigrant Visa

The vast majority of I-601A bar waivers are processed based on marriage to a U.S. citizen. In August 2016, the I-601A Provisional Waiver was expanded.

Now, any foreigner who applies for an immigrant visa, may possibly take advantage of the I-601A waiver. Specifically, any foreigner who

1. has a spouse who is a U.S. citizen or permanent resident green card holder (LPR);
2. has a parent who is either a U.S. citizen or LPR; or
3. who is applying for an immigrant visa based on virtually any type of petition, whether family, employment, diversity, or accompanying follow-to-join.

Once the foreigner has an immigrant visa in process, there are certain times that foreigner may apply for a bar waiver under I-601A.

Allan

Who may apply for a 601 Waiver?

A foreigner may apply for an I-601A bar waiver if the foreigner has a qualifying relative who is a U.S. citizen or permanent resident green card holder. Hardship to the qualifying relative is the central focus. A “qualifying relative” includes a U.S. citizen or permanent resident green card holder who is one of the following:

• husband or wife
• parent of the foreigner

A child of the foreigner is not a qualifying relative. Also, it seems a fiance relationship is not sufficient to support an I-601A hardship waiver since the K1 Fiance Visa is not technically an immigrant visa. Instead, consider an I-601 bar waiver. If the foreigner does not have a qualifying relative with hardships, then a 601A bar waiver application is not available.

In order to succeed at obtaining a waiver, the qualifying relative must prove Extreme Hardship.

Exceptions

Sometimes, it is possible to remain in the U.S. and obtain lawful status or a green card without the need for an I-601A bar waiver.

This can happen when the foreigner

1. is a victim of domestic violence or
2. is a victim of a serious crime and helps prosecute the criminal or
3. when the spouse is a member of the U.S. Armed Services or a military veteran or
4. has DACA privileges.

The DACA cases have particular problems, so contact us for a consultation on this issue. In order to succeed at obtaining a waiver, the qualifying relative must prove Extreme Hardship. The hardships should not be common to others and should be unique to your situation. Most bar waivers are denied.

Our law firm has obtained many i601 and i601A bar waivers. This is one of our areas of expertise. Our managing attorney, Allan S. Lolly, Esq., is excellent at identifying hardships and circumstances that are compelling and that you might not consider.

Call for Assistance — We will discuss your situation. Make sure you are working with a licensed and experienced immigration law firm on your provisional bar waiver. Our initial consultation is FREE so we can learn more about your situation and discuss possibilities.