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: (i) Is present in the United States at the time of filing the application for a provisional unlawful presence waiver; (ii) Provides biometrics to USCIS at a location in the United States designated by USCIS; (iii) Upon departure, would be inadmissible only under section 212(a)(9)(B)(i) of the Act at the time of the immigrant visa interview; (iv) Has a case pending with the Department of State, based on: (A) An approved immigrant visa petition, for which the Department of State immigrant visa processing fee has been paid; or (B)Selection by the Department of State to participate in the Diversity Visa Program under section 203(c) of the Act for the fiscal year for which the alien registered; (v) Will depart from the United States to obtain the immigrant visa; and (vi) Meets the requirements for a waiver provided in section 212(a)(9)(B)(v) of the Act. 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

See our blog post on extreme hardship. A. Totality of the Circumstances The officer must make extreme hardship determinations based on the factors, arguments, and evidence submitted.1 Therefore, the officer should consider any submission from the applicant bearing on the extreme hardship determination. The officer may also consider factors, arguments, and evidence relevant to the extreme hardship determination that the applicant has not specifically presented, such as those addressed in Department of State (DOS) information on country conditions2 or other U.S. Government determinations regarding country conditions, including a country’s designation for Temporary Protected Status (TPS). Officers must base their decisions on the totality of the evidence and circumstances presented. B. Common Consequences The common consequences of denying admission, in and of themselves, do not warrant a finding of extreme hardship.3 The Board of Immigration Appeals (BIA) has held that the common consequences of denying admission include, but are not limited to, the following: C. Factors Must Be Considered Cumulatively The 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.5 For example, if a qualifying relative has a medical condition that alone does not rise to the level of extreme hardship, the combination of that hardship and the common consequences of inferior medical services, economic detriment, or readjusting to life in another country may cumulatively cause extreme emotional or financial hardship for the qualifying relative when considering the totality of the circumstances.  Ordinarily, for example, the fact that medical services are less comprehensive in another country is a common consequence of denying admission; but the inferior quality of medical services, considered along with the individual’s specific medical conditions, may create sufficient difficulties as to rise to the level of extreme hardship in combination with all the other consequences. The officer must weigh all factors individually and cumulatively, as follows: 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 alone does not rise to the level of extreme hardship, 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.  When considering the factors, whether individually or cumulatively, all factors, including negative factors, must be evaluated in the totality of the circumstances.  D. Examples of Factors that May Support a Finding of Extreme Hardship The chart below lists factors that an applicant might present and that would be relevant to determining whether an applicant has demonstrated extreme hardship to a qualifying relative. This list is not exhaustive; circumstances that are not on this list may also be relevant to finding extreme hardship.  The presence of one or more of the factors below in a particular case does not mean that extreme hardship would necessarily result from a denial of admission. But they are factors that may be encountered and should be considered in their totality and cumulatively in individual cases. All hardship factors presented by the applicant should be considered in the totality of the circumstances in making the extreme hardship determination. Some of the factors listed below apply when the qualifying relative would remain in the United States without the applicant. Other factors apply when the qualifying relative would relocate abroad. Some of the factors might apply under either circumstance.  Family Ties and Impact Qualifying relative’s ties to family members living in the United States, including age, status, and length of residence of any children. Responsibility for the care of any family members in the United States, particularly children, elderly adults, and disabled adults. Impact on the cognitive, social, or emotional well-being of a qualifying relative who is left to replace the applicant as caregiver for someone else, or impact on the qualifying relative (for example, child or parent) for whom such care is required. Social and Cultural Impact Loss of access to the U.S. courts and the criminal justice system, including the loss of opportunity to request or provide testimony in criminal investigations or prosecutions; to participate in proceedings to enforce labor, employment, or civil rights laws; to participate in family law proceedings, victim’s compensation proceedings, or other civil proceedings; or to obtain court orders regarding protection, child support, maintenance, child custody, or visitation. Fear of persecution or societal discrimination. Prior grant of U nonimmigrant status. Existence of laws and social practices in the country of relocation that would punish the qualifying relative because he or she has been in the United States or is perceived to have Western values. Access or lack of access to social institutions and structures (official and unofficial) for support, guidance, or protection. Social ostracism or stigma based on characteristics such as gender, gender identity, sexual orientation, religion, race, national origin, ethnicity, citizenship, age, political opinion, marital status, or disability.6 Qualifying relative’s community ties in the United States and in the country of relocation. Extent to which the qualifying relative has integrated into U.S. culture, including language, skills, and acculturation. Extent to which the qualifying relative would have difficulty integrating into the country of relocation, including understanding and adopting social norms and established customs, including gender roles and ethical or moral codes. Difficulty and expense of travel/communication to maintain ties between qualifying relative and applicant, if the qualifying relative does not relocate. Qualifying relative’s present inability to communicate in the language of the country of relocation, as well as the time and difficulty that learning that language would entail. Availability and quality of educational opportunities for qualifying relative (and children, if any) in the country of relocation. Availability and quality of job training, including technical or vocational opportunities, for qualifying relative (and children, if any) in the country of relocation. Economic Impact Economic impact of applicant’s departure on