The provisional unlawful presence waiver is for certain immigrant visa applicants who are spouses, children, and parents of U.S. citizens (immediate relatives) or lawful permanent residents. The waiver asks the United States government to excuse the applicant’s unlawful presence INA 212(a)(9)(B). The waiver is most used when someone enters the United States unlawfully or without proper documentation and who marries a United States citizen or lawful permanent residents.

The 601A waiver is a “stateside” waiver. Meaning you apply for the waiver of the three- and ten-year bars for unlawful presence before leaving the U.S. to attend the consular interview. If your provisional unlawful presence waiver is approved, you then depart the U.S. to attend your immigrant visa interview abroad, and if you are otherwise eligible, the consular officer will issue your immigrant visa. This avoids the uncertainties of leaving the United States prior to a waiver approval.

• You must be physically present in the United States to file your application and to provide biometrics.
• You must be 17 years of age or older at the time of filing.
• You must be the beneficiary of an approved immigrant visa petition classifying you as the immediate relative of a U.S. citizen or permanent resident (Form I-130)
• Intend to depart the United States to attend an immigrant visa interview at a U.S. consulate or Embassy abroad
• Have paid the immigrant visa processing fee
• Show that, if not granted the waiver and green card, your qualifying U.S. relative(s); will suffer extreme hardship as a result.
• Show that there is a strong reason that you and your spouse can’t live together in your home country
• You must only be inadmissible to the United States because of unlawful presence 212(a)(9)(B) and for no other reason. Meaning: more than 180 days, but less than 1 year, during a single stay (INA section 212(a)(9)(B)(i)(I)); or 1 year or more during a single stay (INA section 212(a)(9)(B)(i)(II))
• If other inadmissibility issues are discovered later, an approved I-601A will be revoked. Additionally, if a new inadmissibility ground is identified at the consulate for which no waiver is available, you will have no legal way to return.
• Warrant a favorable exercise of discretion

If your spouse entered the United States illegally but has been in the United States for less than 180 days, he or she could generally return home and apply for a green card through the U.S. consulate (consular processing).

If your spouse has been in the United States for more than 180 days without legal status, he or she will be subject to a time bar for reentry. To avoid this bar, your spouse would need to apply for a I-601A Unlawful Presence Waivers, while they are in the U.S (discussed above) to be able to depart the United States and return sooner. The waiver can be available to spouses married to U.S Citizens and Lawful Permanent Residents (green card holders).

This waiver is based on extreme hardship to U.S citizen or lawful permanent resident relatives and requires that you carefully document the result if your inadmissibility cannot be waived. Depending on the situation, the government might consider hardship to the immigrant, a spouse, a parent, or child.