The I-601A Waiver is for individuals who are inadmissible pursuant to INA §212(a)(9)(B) for unlawful presence. Typically this waiver is for the spouse or child of a US citizen or legal permanent resident (LPR), who entered the US without inspection (usually by crossing the US-Mexico or US-Canada border). Since someone who enters the US without inspection is ineligible for adjustment of status they have to leave the US to attend a consular interview to obtain legal permanent residency.

If the person has been unlawfully present in the US for more than six months then they can’t leave the US to attend the visa interview without tripping the three or ten-year unlawful presence bar. The I-601A Waiver, if approved, waives the wait period that the applicant would normally be subject under the unlawful presence bar, allowing them to obtain their visa at the consular interview and reenter the US as a legal permanent resident without having to wait three/ten years outside the country.

An I-601A waiver requires that the applicant be the beneficiary of an approved immigrant visa petition that is immediately available to them (petitions for immediate relatives, family-sponsored or employment-based immigrants as well as Diversity Visa selectees), that they have paid the visa fees, they are otherwise admissible to the United States, they deserve favorable discretion, and they can establish that their qualifying relative will suffer extreme hardship if their application is denied. A qualifying relative for an I-601A waiver can be a US citizen/LPR spouse or US citizen/LPR parent (children are not qualifying relatives). One cannot apply for an I-601A waiver without a qualifying relative. The eligibility details are available below and at the USCIS.gov website.

NOTE: The Form I-601 Waiver (without an A) still exists. The original I-601 Waiver does the same thing as an I-601A but it is filed by someone who has already tripped the unlawful presence bar and is outside of the US. Individuals who do not wish to seek or do not qualify for a provisional unlawful presence waiver can still file Form I-601, Application for Waiver of Grounds of Inadmissibility, after a DOS consular officer determines that they are inadmissible to the United States.

ELIGIBILITY

An alien who is inadmissible for unlawful presence in the U.S. under Section 212(a)(9)(B) of the Immigration and Nationality Act (INA), is eligible for a waiver of inadmissibility pursuant to INA §212(a)(9)(B)(v). Eligibility requirements enumerated under 8 CFR 212.7(e) are as follows:

BURDEN OF PROOF

PREPONDERANCE OF THE EVIDENCE STANDARD

The Applicant must establish eligibility for a waiver by a preponderance of the evidence. See Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010) (identifying preponderance of the evidence as the standard for immigration benefits generally, in that case naturalization).

MORE LIKELY THAN NOT

The preponderance of evidence standard requires that the evidence demonstrates that denial of the Applicant’s admission will “more likely than not” result in extreme hardship to the Applicant’s qualifying relative(s). Id. at 376.

QUALIFYING RELATIVE

The requirements for a waiver provided at section 212(a)(9)(B)(v) of the Act are that he establish to the satisfaction of the Attorney General that the refusal of admission would result in extreme hardship to a qualifying relative, which is defined as a citizen or resident parent or spouse.

Hardship to and Applicant’s USC children must be considered insofar as it results in hardship to any of the qualifying relatives. See Matter of Recinas, 23 I&N Dec. 467 (BIA 2002); Matter of Andazola, 23 I&N Dec. 319 (BIA 2002); *Matter of Monreal,*23 I&N Dec. 56 (BIA 2001). Additionally, hardship to the Applicant’s three USC Children, other family members, members of the community, and the Applicant himself, may serve as favorable factors to be considered in the determination of whether the Secretary should exercise favorable discretion by approving the waiver. See Matter of Mendez, 21 I&N Dec. 296 (BIA 1996).

EXTREME HARDSHIP

The definition of “extreme hardship,” according to immigration law, is “not . . . fixed and inflexible, and the elements to establish extreme hardship are dependent upon the facts and circumstances of each case.” Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 565 (BIA 1999). Further, in assessing extreme hardship, one “must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation.” Matter of O-J-O-, 21 I&N Dec. 381 (BIA 1996).

Extreme hardship in the context of an I-601A Provisional Waiver has a significantly lower burden of proof than the exceptional and extremely unusual hardship requirement of cancellation of removal referenced throughout this brief. Extreme hardship in this context must go “beyond that typically associated with deportation.” See 8 CFR 1240.58(b); See also USCIS Policy Manual Volume 9, Part B, Chapter 2. The federal courts and the BIA have frequently relied on cases involving the former suspension of deportation statute when interpreting extreme hardship waiver statutes, as these statutes employed the same language. See Hassan v. INS, 927 F.2d 465, 467 (9th Cir. 1991). See Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 565 (BIA 1999), aff’d, Cervantes-Gonzales v. INS, 244 F.3d 1001 (9th Cir. 2001).

The USCIS Policy Manual (Volume 9, Chapter 5, Part b) states, “[t]he officer must consider all factors and consequences in their totality and cumulatively when assessing whether a qualifying relative will experience extreme hardship either in the United States or abroad. In some cases, common consequences that on their own do not constitute extreme hardship may result in extreme hardship when assessed cumulatively with other factors.” The Policy Manual explains that first, the officer must consider whether any factor set forth individually rises to the level of extreme hardship under the totality of the circumstances. Second, if any factor or factors do not rise to the level of extreme hardship on their own, the officer must consider all factors together to determine whether they cumulatively rise to the level of extreme hardship. “This includes hardships to multiple qualifying relatives.” Id.

Factors to be considered in evaluating extreme hardship include, but are not limited to, whether the qualifying relative has family ties to this country; the extent of the qualifying relative’s family ties outside the U.S.; conditions in the country of removal; financial impact of departure from this country; and significant health conditions, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. Matter of Cervantes, 22 I&N Dec. 560, 566 (BIA 1999); see also INS v. Jong Ha Wang, 450 U.S. 139 (1981). The definition of extreme hardship “is not … fixed and inflexible, and the elements to establish extreme hardship are dependent upon the facts and circumstances of each case.” Matter of Cervantes-Gonzales, 22 I&N. Dec. 560, 566 (BIA 1999). Extreme hardship exists “only in cases of great actual and prospective injury.” Matter of Ngai, 19 I&N Dec. 245, 246-47 (BIA 1984). An applicant must demonstrate that claimed hardship is realistic and foreseeable, Id.

The court has held that “the most important single hardship factor may be the separation off the alien from family living in the United States”, and “when the BIA fails to give considerable, if not predominant, weight to the hardship that will result from family separation, it has abused its discretion.”  Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998). Furthermore, family separation due to immigration law is not a choice.  Perez v. INS, 96 F.3d 390, 392 (9th Cir. 1996).  When the court attributes the hardship posed by family separation to “parental choice” rather than a forced mandate, the court “abuse[s] its discretion.” Id. at 392. Matter of Lopez-Monzon, 17 I&N Dec. 280, 281 (BIA 1979) (“The intent of Congress in adding [the waiver], which is evident from its language, was to provide for the unification of families, thereby avoiding the hardship of separation.”).

Relevant factors that are not considered extreme in and of themselves, may rise to the level of extreme hardship when considered in the aggregate. See Matter of Ige, 20 I&N Dec. 880, 882 (BIA 1994).

Importantly, the standard applicable here is not as burdensome as the “exceptional and extremely unusual” hardship standard applied to cancellation of removal and other forms of immigration adjudications. See INA 240A(b)(1)(D); see also See Matter of Andazola-Rivas, 23 I&N Dec. 319, 322, 324 (BIA 2002) (holding the “exceptional and extremely unusual hardship” standard to be “significantly more burdensome than the ‘extreme hardship’ standard” and intimating that the applicant “might well” have prevailed under the latter standard even though she failed under the former) and Matter of Monreal-Aguinaga, 23 I&N Dec. 56, 59-64 (BIA 2001) (same).

The USCIS Policy Manual identifies factors that serve as particularly significant factors on whether a denial of admission would result in extreme hardship.

Form I-601A Waiver

Filing Fee

$670

Filing Location