Written by attorney Kaushik Shakti Ranchod

8 Frequently Asked Questions on I-601 Hardship Waivers

1. Question: My future spouse entered the USA illegally, do we have options?

Answer: If you are a US citizen and your spouse entered without a visa (EWI) you may petition for your wife by filing an I-130 petition. However you will not be able to file for an Adjustment of Status within the United States.

In order to overcome the illegal entry you would need to file an I-601 Extreme Hardship Waiver after the I-130 is approved. You may file for the unlawful presence waiver within the United States.

2. Question: What is an unlawful presence waiver? Do I need an unlawful presence waiver?

An individual who is present in the United States illegally for over 180 days but less than 1 year is barred from returning to the United States after departure for 3 years. Similarly, an individual who is present in the United States illegally for one year or more is barred from returning to the United States after departure for 10 years.

A typical scenario of an individual who needs an unlawful presence I601A waiver would be one in which the individual enters the United States illegally and later marries a U.S. Citizen. Previously, that individual would have to leave the United States and apply for a waiver of the 3 or 10 year bar abroad in order to reenter the United States as a lawful permanent resident (i.e. with an immigrant visa or as a greencard holder). Now, with the unlawful presence waiver, that same individual can apply for the waiver here and after approval, return to their home country only to receive their immigrant visa. This significantly shortens the amount of time the individual must be separated from his U.S. family.

3. Question: I overstayed my visa can but I am married to a United States Citizen, can I apply for a green card?

Answer: You are eligible to apply for a green card if you entered the United States on a visa. However, if you entered on a visa waiver program (VWP) and overstayed it may be up to USCIS’ discretion regarding whether or not you can adjust status. In Northern California we have had success in obtaining green cards for applicants who entered on VWP and overstayed their visa.

4. Question: What is the three year bar and ten year bar?

Answer: When you enter the United States and overstay your visa by more than 180 days you are subject to a three year bar. If you overstay your visa by one year or more you are subject to a ten year bar. These bars also apply to individuals who enter without a visa. If you are married to a United States citizen you may be able to file for a waiver to overcome these bars. These bars do not allow the applicant to enter the United States while they are valid.

5. Question: My future spouse has left the United States. He entered the United States illegally. How do we get reunited?

Answer: In order to file for an I601 hardship waiver you must be engaged or married to a US citizen. If you are engaged to a US citizen you must have met your fiancé(e) within the last two years to file for a K-1 visa. To file for an Immigrant Visa (green card) application based on marriage you must have a valid marriage. If you are currently not married you would need to travel to your spouse’s home country to get married. Only after you are married may you commence the Immigrant Visa process.

6. Question: I have entered the United States illegally more than two times since 1997, can I file a hardship waiver?

Answer: You are not eligible for a hardship waiver if you entered the United States illegally more than two times. If you entered illegally prior to 1997 and you have not had any illegal entries after 1997 you may have some immigration options.

7. Question: What is the provisional waiver? Can I apply for the waiver in the United States?

Answer: Under the Provisional waiver process, spouses of U.S. citizens who would need a waiver of unlawful presence in order to obtain an immigrant visa can file a new Form I-601A, Application for Provisional Unlawful Presence Waiver, before leaving the United States to obtain an immigrant visa at a U.S. Embassy or Consulate abroad. All individuals eligible for this streamlined process are still required to depart the United States and must meet all legal requirements for issuance of an immigrant visa and admission to the United States.

8. Question: My spouse was deported from the United States or left the United States pursuant to an order of removal or order of voluntary departure, can he/she come back to the United States?

Answer: Your spouse may be able to return to the United States. You must file an immigrant petition on behalf of your spouse and your spouse must be the subject of the approval of two waivers, Form I-212 Application for Permission to Reapply for Admission into the United States After Deportation or Removal and Form I-601 Application for Waiver of Grounds of Inadmissibility.

Additional resources provided by the author

Contact us today for more information on I-601 hardship waivers and immigration law at: Phone: (916) 613-3553 or by Email: [email protected] More detailed information is available at our website:

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