What is an Inadmissibility Waiver and When is it Required?
An inadmissibility waiver allows an individual entry into the United States when that individual would otherwise not be admitted to the United States based on a variety of possible reasons. An inadmissibility waiver is necessary for individuals deemed inadmissible to the United States under either a visa, Green Card, or other U.S. entry. The I-601, Application for Waiver of Grounds of Inadmissibility and the I-601A, Application for Provisional Unlawful Presence Waiver are waivers available to individuals who are unlawfully in the United States to adjust their status in the hopes they will be able to obtain a green card.
The United States will deem individuals inadmissible for a variety of reasons, including the immigration applicant’s health and the spread of communicable diseases, criminal activity, national security, public charge, lack of labor certification, fraud and misrepresentation, prior removals, or unlawful presence in the United States. When an applicant is deemed inadmissible, he or she can request a waiver to be admitted to the United States. However, there is no guarantee the waiver will be granted as it is dependent on the circumstances of the applicant and the reason(s) he or she was deemed inadmissible.
What is the Difference Between the I-601 and I-601A Waivers?
Both the I-601 and I-601A waivers are used by individuals deemed inadmissible to the United States in order to obtain admissibility. However, one main difference between the two waivers is that the I-601 waiver is available for individuals who are outside the United States at the time they file the waiver, while the I-601A waiver is available for individuals who are inside the United States at the time they are deemed inadmissible.
Besides the location of the inadmissible immigrant, there are some other key differences between the I-601 and I-601A that are important to keep in mind.
I-601, Application for Waiver of Grounds of Inadmissibility
A chief difference between I-601 and I-601A is the reason(s) each is filed. As the name of the I-601 form indicates, there are many reasons or “grounds” for why an individual may be deemed inadmissible and need to file Form I-601. Some of the reasons an individual may be deemed inadmissible include:
- Health-related issues
- Criminality;
- Immigration Fraud;
- Immigrant smuggler;
- Immigrant membership in a Totalitarian Party;
- Participation in genocide;
- Terrorism;
- Espionage or sabotage against the U.S. government;
- Subject to 3 or 10 year unlawful presence bar;
- Unlawful presence by NACARA and HRIFA applicants;
- Unlawful presence by VAWA applicants;
- Drug trafficking
Individual applicants who are deemed inadmissible may file Form I-601 if they are:
- Outside the United States and applied for an immigrant visa (can submit only after consulate interview);
- Outside the United States and applied for a K or V nonimmigrant visa;
- Inside the United States and seeking adjustment of status or temporary protected status.
Despite the many reasons an individual may be deemed inadmissible, only certain reasons for inadmissibility are waivable under the I-601 waiver, including:
- Health issues or communicable disease;
- Physical or mental disorder that can cause harm to the individual or others;
- Not having received proper vaccinations;
- Convictions for certain crimes involving moral turpitude;
- Violations of immigration laws;
- Prostitution;
- Multiple criminal convictions;
- Likely dependence on government assistance;
- Immigrant membership in totalitarian party;
- Being subject to civil penalty;
- The 3-year or 10-year bar due to previous unlawful presence in the United States
On the other hand, an applicant cannot apply for an inadmissibility waiver if the reason for his or her inadmissibility is:
- Drug abuse or addiction;
- Drug trafficking;
- Espionage or sabotage against the U.S. government;
- Terrorism;
- Participation in genocide
When a request for a waiver is filed using I-601, the United States Citizenship and Immigration Services (USCIS) reevaluates the circumstances that made the applicant inadmissible in the first place. When submitting Form I-601, extensive documentation evidence in support of granting the waiver must be included:
- Evidence establishing why the individual qualifies for an inadmissibility waiver;
- This evidence must be specific to the reason(s) the individual was deemed inadmissible (e.g. why the individual should be exempted from required vaccines).
- Evidence to support a claim of extreme hardship (if applicable) that an immediate relative of the individual will face if inadmissibility is not waived.
I-601A, Application for Provisional Unlawful Presence Waiver
Unlike the I-601 waiver, the I-601A waiver applies to only one circumstance — particularly, when an individual is unlawfully present in the United States. Individuals who are unlawfully present in the United States risk being barred from the United States for three or ten years due to their unlawful presence. However, an I-601A waiver can prevent an individual from being barred if the waiver is approved.
An individual is deemed unlawfully present in the United States if they fail to leave the country at the time their immigrant or nonimmigrant visa expires without adjusting their status or applying for renewal, or are undocumented.
Besides the unlawful presence requirement for the I-601A, an individual is eligible to apply for the waiver if refusal to admit them would result in extreme hardship to their U.S. citizen or LPR spouse or parent. Thus, I-601A applicants must show that their absence from the United States will be seriously troublesome for their applicable family member(s).
There are a few additional eligibility requirements for the I-601A waiver. An individual is eligible to apply for the waiver if they:
- Are physically present in the United States;
- Are at least 17 years of age at the time of filing;
- Have an immigrant visa pending with the Department of State, and have paid all immigrant visa processing fees, and are in the process of obtaining an immigrant visa as the principal beneficiary of an approved:
- Form I-130, Petition for Alien Relative; or
- Form I-140, Petition for Alien Worker; or
- Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant; or
- Have an immigrant visa pending with the Department of State after being selected (as a DV Program selectee) to participate in the Diversity Visa (DV) Program and are currently in the process of obtaining your immigrant visa; or
- Are the spouse or child of a principal beneficiary of an approved immigrant visa petition and have paid the immigrant visa processing fee to the Department of State, or the waiver applicant is the spouse or child of a DV Program selectee and is currently in the process of obtaining their immigrant visa;
- Believe they are or will be inadmissible only for a period of unlawful presence in the United States that was:
- More than 180 days, but less than 1 year, during a single stay; or
- One year or more during a single stay.
An individual is not eligible to apply for an I-601A waiver if they:
- Have Form I-485, Application to Register Permanent Residence or Adjust Status, pending with USCIS;
- Are in removal proceedings, unless your removal proceedings are administratively closed and have not been placed back on the Department of Justice (DOJ), Executive Office for Immigration Review (EOIR) calendar to continue removal proceedings at the time Form I-601A is filed;
- Are subject to an administratively final order of removal, exclusion, or deportation that has been entered or issued against them unless they applied for and USCIS has already granted an application for permission to reapply/consent to reapply for admission;
- Have a final decision reinstating a prior deportation, exclusion, or removal order entered against them by the Department of Homeland Security (DHS) using Form I-871, Notice of Intent/Decision to Reinstate Prior Order, which is served before the provisional unlawful presence waiver application is filed or while the provisional unlawful presence waiver application is pending.
- Are currently subject to an unexpired grant of voluntary departure from the immigration judge or the BIA;
- Fail to establish that their U.S. citizen or LPR spouse or parent would experience extreme hardship if they are refused admission to the United States or that USCIS should approve their application as a matter of discretion.
- Waiver applicants must establish that refusal to admit them would result in extreme hardship to their U.S. citizen or LPR spouse or parent. They must also establish that their case warrants a favorable exercise of discretion by showing that favorable factors in their case should be given more weight than the unfavorable factors.
It is important to note that, despite the requirement that a I-601A waiver applicant be in the United States at the time they file, the applicant may nonetheless have to leave the United States even if the waiver is approved. This is because the waiver only excuses their unlawful presence, it does not grant them a new visa. In other words, the waiver only makes them eligible to apply for a new visa. Since the waiver applicant is unlawfully present, they are “out of status,” making it impossible for them to adjust their status within the United States. Accordingly, even if the I-601A waiver is granted, the applicant will have to leave the United States to attend a consular interview in order to receive their new visa.
