You may need an I-601 waiver to waive your unlawful presence if you are married to a US citizen or lawful permanent resident or your US citizen child who is over 21 wants to file for you and you have unlawful presence. Unlawful presence starts from the time that you have overstayed your visa, or from when you entered the country by just crossing the border without a visa.
If you have unlawful presence from overstaying a visa, but your spouse or child who is over 21 is applying for you--you may not need to file for an unlawful presence waivers. Immediate relatives of US Citizens include spouses and parents. Immediate relatives are able to adjust their status to become green card holders without having to leave the country and pick up their visas in their home country if they entered on a valid visa and have proof (copy of your I-94 or passport stamp, etc.). If you are confused about this or need further clarification, then you should contact an immigration lawyer. Note: there are some people who entered with a visa, but had lied on their initial visa application or had other issues with that application and will need to file for an I-601 based on extreme hardship even though they came on a visa.
Should I file a waiver?
If you entered by crossing the border then you will most likely need an unlawful presence waiver. This means you will need to file an I-601 Application for Waiver of Grounds in Inadmissibility form with evidence of hardship to your spouse if you are unable to return or remain in the US.
If you are inadmissible because of unlawful presence or lying on your initial visa application, you will need to file an I-601 based on extreme hardship to a citizen or lawful permanent resident spouse or parent (USC spouse or parent if filing an I-601A). If you have certain kinds of criminal history, you will need to file an I-601 based on extreme hardship to your citizen or lawful permamnet resident spouse, parent or child. In some cases your US citizen fiance may be determined to be a qualifying relative for purposes of the waiver.
How do I show "Extreme Hardship?"
You might be wondering what kind of “extreme hardship” does your spouse or parent (and in some instances child or fiance) would need to show. “Extreme hardship” is more than just the typical heartache or hardships that couples go through when they are separated. Sometimes looking and several individual hardships together can rise to the level of “extreme hardship,” but here is a list of some of the factors that are considered:
- Health: Psyical or medical conditions
- Financial: Employment and other financial considerations
- Education: Your spouse’s and children’s educational opportunities
- Personal: How the people closest to you might suffer
- Special Factors: Language barriers, lived in US your whole life, cultural reasons etc.
Working with a lawyer can help you narrow the list of hardships down to your strongest arguments.
For some people the waiver may be their only option. If you are outside of the US and are facing a 3 or 10 year ban, then the only way to get past the ban is to file a waiver for your unlawful presence showing the “extreme hardship” your spouse (green card holder or US Citizen) would face. If you are in the US you may be unwilling to leave the country and face being unable to return.
The I-601A process was introduced to allow people to leave the US with their waiver pre-approved. The pre-approval does not guarantee admission back into the US, but it does make it much faster for the consulate to allow you back into the country and it makes it easier to leave knowing that it has already been decided and that you will have only a one to two week wait in your home country. This process is not recommended for those who have ever been arrested and may have criminal admissibility issues separate from their unlawful presence. If you would like to talk more about this process, please contact me.