I-601 Waivers for Unlawful Presence
The U.S. Immigration & Nationality Act contains sometimes devastating penalties to punish individuals who have entered or remained in the U.S. unlawfully. For example, an individual who has accrued more than 180 days of unlawful presence will, upon departing the United States, generally be barred from returning to the U.S. for a period of three years. In the event that the individual departs the United States after being here unlawfully for one year or more, he or she will be barred from returning to the U.S. for a period of ten years.
These penalties are especially frustrating for individuals who are otherwise eligible to gain permanent residence (“green card”) based on marriage to a U.S. citizen. Individuals who entered the U.S. unlawfully are generally prohibited from obtaining a green card from within the United States, even if they are married to a U.S. citizen. Rather they must return to their home country to apply for an immigrant visa at a U.S. consulate or embassy. However, as described above, an individual who has accrued more than 180 days of unlawful presence will be subject to a bar of three or ten years. Fortunately, a waiver exists which may allow an individual to obtain an immigrant visa and enter the U.S. as a permanent resident in spite of the three- or ten-year bar.
In order to obtain this waiver, it is necessary to demonstrate that the U.S. citizen spouse will suffer extreme hardship if the visa-applicant spouse is not allowed to return to the United States. The waiver is sought via the Form I-601, which must be accompanied by sufficient evidence that the U.S. citizen spouse will indeed suffer “extreme hardship.” If the immigrant visa application and Form I-601 are approved, the applicant may enter the United States and remain her as a lawful permanent resident.
This summary of the I-601 waiver for unlawful presence does not represent legal advice to any specific case. Every situation is different and additional bars to admissibility may exist from case to case. Given the grave consequences that may arise if the government denies an I-601 waiver application, interested applicants are advised to consult with an immigration attorney prior to initiating the process.