Not everyone sails through the immigration process—sometimes, even receiving a visa can seem impossible. Maybe you’re being turned away because of your health or you’re guilty of previously trying to enter the United States illegally.
The reasons for denying admission into the United States are fairly broad. While this can lead to some confusion, it can also open a doorway. You may be able to obtain a waiver. Determining eligibility for provisional unlawful presence waivers is fairly simple as long as you submit the right form.
Which Form Should You Use?
Even though there’s no guarantee your provisional unlawful presence waiver will be approved, it helps to use the right form. Which form you use depends on the reason you’re currently ineligible to remain in the United States.
Form 1-601A
If you have immediate family in the United States, either permanent residents or green card holders, you may meet the eligibility requirements for form 1-601A. Your immediate family is limited to a spouse or parents. An aunt, uncle, grandparents, or siblings may not meet the criteria.
With a waiver, you may be able to remain in the United States while waiting to learn if your visa application is approved. You may also be able to skip the usual seven to ten-year wait for a U.S. visa if you’re in your home country. You can apply at the U.S. consulate or embassy.
Form 1-601
Not everyone has a close family living in the United States. If this applies to you, you can still file a provisional unlawful presence waiver. However, this time you reach for form 1-601. Think of it as a type of catch-all form that covers pretty much every reason why your entry into the United States may be denied.
A quick note. If you have a criminal record, you may not be eligible for a provisional unlawful presence waiver regardless of the form you fill out.
Eligibility Requirements for Form 1-601A
Staying past your visa date is easy, especially when your spouse and/or parents are living in the United States. You don’t want to be separated and form 1-601A may allow you to remain in the country, at least for a while. So, what are the eligibility requirements for form 1-601A?
- You must currently be in the United States when you submit the waiver to the immigration department. There aren’t any exceptions to this requirement. If you meet this requirement, you’re well on your way to being able to use form 1-601A.
- You must be at least 17 years old when submitting the form. This may mean waiting a few months until your 17th Minors under the age of 16 may be eligible for inclusion on a family visa. This depends on the particular situation but it may be something to discuss with your immigration lawyer.
A final eligibility requirement deals with your immigrant visa. You must have a case pending with the U.S. State Department. In other words, you’ve started the naturalization process but haven’t received word on your green card status.
Eligibility Requirements for Form 1-601
The eligibility requirements for Form 1-601 are a little more extensive compared to Form 1-601A. The reason is pretty simple. Form 1-601 covers a broad range of reasons someone may be denied a visa. Don’t forget there are different types of visas and this affects the reasons for denial,
For example, the reasons for being denied a student visa are different than if you’re applying for a work green card. This doesn’t impact the type of provisional unlawful presence waiver, you still fill out Form 1-601. Only, you list a different reason for going this route. With that being said. Here’s a look at the eligibility requirements for the 1-601 waiver.
- Applying for an immigrant, K, or V visa in your birth country and are denied after going through the interview with the consular officer.
- You’re applying for an adjustment of status to your current visa. The waiver allows you to remain in the country while your adjustment request is sorted out.
- Individuals applying for temporary protective status. The waiver is similar to asylum and allows the individual to wait in the U.S. while their visa application is being processed.
- You are an applicant for Adjustment of Status under the Nicaraguan Adjustment and Central American Relief. This eligibility requirement only applies to a specific set of individuals and is closely monitored for any signs of fraud.
Others who may qualify for a provisional unlawful presence waiver can include women and children fleeing violence. In most situations, as long as you’re currently in the U.S., have a visa case pending, and are at least 17 years old, you can submit Form 1-601 to temporarily remain in the United States.
How to Apply for a Provisional Presence Waiver
How to apply for a provisional presence waiver depends on which one you need to file. If your visa is denied by the U.S. consult and you’re in your birth country, you have a few options. You can head back to the U.S. consultant and request a copy of form 1-601.
If you’re deported from the US, you can file your waiver application online or send it in by mail. The United States Customs and Immigrations Services (USCIS) will review your application and inform the consulate of its decision. If your waiver request is denied, you may be able to file an appeal.
Filing form 1-601A means a visit to a USCIS facility. Along with submitting the application, you also need to go through a biometrics exam. All of the documentation is submitted for review which can take anywhere from eight months up to a year. Yes, you can remain in the U.S. will the form is being processed. However, if it’s denied you may face a deportation hearing.
Since applying for a provisional unlawful presence waiver can be complicated, even if you’re in the United States, it’s usually best to work with an immigration attorney. Your attorney can help you through every step of the process, including filing an appeal if your application is denied.
