Provisional Waivers

Under traditional immigration law if someone committed fraud or was undocumented in the United States for more than 180 days and left the country, the individual cannot simply return. A person must apply for an I-601 waiver to be allowed back into the country. The law granting this waiver first came into effect on March 4, 2014. President Obama’s executive action announced on November 20, 2014, expanded certain requirements that benefit family members of legal permanent residents.

Children and spouses of American citizens and legal permanent residents who have been in the United States for 180 days or more can qualify for this waiver. Before President Obama used executive action to introduce new immigration measures, only family members of U.S. citizens could benefit from waiver.

This waiver applies to those who are not eligible for adjustment of status in the United States. If you came with a tourist visa and end up marrying a U.S. citizen, you may obtain a green card without having to leave the country at all.

The problem was that, for example, a marriage with children, in which the husband had to go abroad to request a waiver, the family would be separated for months–sometimes years–while the application for the waiver was processed. An I-601 waiver shortens that period of time by allowing the person to apply while they are in the United States before having to go abroad to the embassy or consulate in their country of origin. This can be confusing for immigration attorneys since it does not apply to all kinds of waivers. IT only applies to waivers for illegal presence in the United States. So if you are an undocumented immigrant and have been in the United States for a year and committed a crime, you are not eligible for this waiver.

You also must be able to demonstrate extreme hardship that departure would cause for an immediate relative. An extreme hardship can me medical, emotional, or financial. There is one case–Cervantes–that immigration attorneys are familiar with. IT would be helpful to familiarize yourself with the case to understand the standards of extreme hardship. Your U.S. parents, children, and/or spouse must be the ones who would go through extreme hardship.

If you want to appeal the case–if your application is denied–you must keep in mind that it could take several years. If you cannot hire an attorney, it is better not to proceed with applying for the waiver. Seek out an immigration attorney that is experienced in dealing with provisional waivers (I-601) and who knows what the standards for extreme hardship are.