Background on Unlawful Presence
Unlawful presence is any period in which a foreign national is present in the U.S. after expiration of their period of authorized stay (e.g. after the expiration date found on their I-94 entry/departure card), or after entering the U.S. without being admitted or paroled (e.g. after entering the U.S. illegally without inspection).
Foreign nationals who voluntarily depart the United States after accruing over 6 months of “unlawful presence” in the United States are deemed ineligible to re-enter the U.S. for three years starting from the date of their departure. Foreign nationals who depart the United States after accruing over 12 months of “unlawful presence” in the United States are deemed ineligible to re-enter the U.S. for ten years starting from the date of their departure.
Although these spouses are eligible to apply for U.S. lawful permanent residency through their marriage to a U.S. citizen, they cannot adjust their status while remaining in the U.S. (with the small exception of those who qualify under the INA 245(i), which occurs more rarely as time passes by due to the mandatory proof of the applicant’s presence in the U.S. on December 21, 2000, and the visa petition being filed between January 14, 1998 and on or before April 30, 2001 and was “approvable when filed”).
Thus, these spouses must eventually return to their home country for an interview at the U.S. embassy/consulate as part of the process of obtaining U.S. lawful permanent residency. This departure from the U.S. and application for (re)admission triggers the “unlawful presence” bar described above.
Background on Fraud or Misrepresentation
In general. – Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act, is inadmissible.
The “misrepresentation” bar bans a foreign national for life from entering the United States unless a waiver is obtained.
The I-601 Extreme Hardship Waiver
The I-601 waiver allows the unlawful presence and misrepresentation grounds of inadmissibility to be waived and the foreign national to successfully return to the United States as a lawful permanent resident.
The I-601A Provisional Waiver
The I-601A Provisional Waiver allows the spouse, children, and sons and daughters (married or unmarried) of U.S. citizens or U.S. lawful permanent residents to apply for a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States if they can demonstrate that being separated from their U.S. citizen or U.S. lawful permanent resident spouse or parent would cause that U.S. citizen resident relative “extreme hardship”.
Eligibility for the provisional waiver also extends to the spouse and children who accompany or follow to join the principal immigrant.
Thus, approval of the provisional waiver means that the “risk” of going abroad to process for an immigrant visa is significantly reduced since a provisional waiver of the unlawful presence ground of inadmissibility has already been received before the applicant departs the United States.
The I-601A Provisional Waiver does not change the immigrant visa process. In order to be eligible to file the I-601A Provisional Waiver, you must have a case pending with the U.S. Department of State based on an approved immigrant visa petition (either family-based or employment-based) or selection by the U.S. Department of State to participate in the Diversity Visa Program; have paid the Dept. of State visa processing fee; and be physically inside the United States to file the I-601A waiver and provide biometrics.