If you are immigrating to America, one of the worst outcomes will be for you to be found “inadmissible to the United States” by the U.S. authorities.
If you committed certain violations, you may be barred from applying for a green card from within the United States or from returning to the United States if you leave. The Immigration and Nationality Act lays out general grounds for inadmissibility, and these can be very broad. They include health, criminal activity, national security, public charge, lack of labor certification (if applicable), fraud and misrepresentation, prior removals, unlawful presence in the United States, and several other categories.
If you are found inadmissible to the United States during your immigration application process, you can request a waiver. Known as Form I-601 (typically for applicants applying from outside the United States) or Form I-601A (only for applicants applying from within the United States) the waiver process is lengthy, complex, and uncertain.
There are no guarantees that your waiver will be approved, but applying for one provides a pathway for your immigration journey to continue.
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Which Application Should I Use?
You can use Form I-601 to apply for a waiver if you have been found to be ineligible to enter the United States as an immigrant or to adjust status in the United States (and certain other visa categories) for specific grounds of inadmissibility. Make sure you consult the Form I-601 instructions to see which grounds of admissibility can be waived for your visa category.
Cost: The fee to file Form I-601 is $930
Form I-601A is used for applicants in the United States with immediate U.S citizens or green card family members (such as parents or a spouse) and who entered the United States illegally. If you wish to apply for a green card, you will need to leave the United States and apply at a U.S. embassy or consulate. In order to avoid the three- or ten-year entry ban, you will need to apply for a waiver of inadmissibility to re-enter the United States.
Form I-601A is a waiver that must be applied for while in the United States, and if approved by U.S. Citizenship and Immigration Services (USCIS), you will be eligible to attend a green card appointment in your country of origin. However, it must be applied for before you leave the United States and comes with eligibility criteria that will be discussed later on.
Cost: The fee to file Form I-601A is $630.
What Are the Requirements For a Waiver?
Forms I-601 and I-601A may sound similar but are used for very different circumstances, depending on the applicant and type of application.
Important note: The Immigration and Nationality Act (INA) has specific grounds for inadmissibility, and not all visa categories can apply for all the inadmissibility categories. In other words, you may only be eligible to apply for a waiver for certain categories depending on the type of visa you are applying for. For more information about this, make sure you read the “Who may file Form I-601?” in the instructions to Form I-601.
Typically, you can use Form I-601 to file for a waiver if:
- You are an applicant for an immigrant visa or the K or V visas, and you are outside the United States, have had a visa interview with a consular officer, and during the interview, you were found to be inadmissible.
- You are an applicant for Adjustment of Status to lawful permanent residence, although this does exclude some adjustment categories.
- You are an applicant for Temporary Protected Status (TPS).
- You are an applicant for Adjustment of Status under the Nicaraguan Adjustment and Central American Relief.
- You are an applicant for an immigrant visa or Adjustment of Status as a Violence Against Women Act (VAWA) self-petitioner or the child of a VAWA self-petitioner.
- You are an applicant for Adjustment of Status based on T nonimmigrant status.
- You are an applicant for Adjustment of Status as a Special Immigrant Juvenile (SIJ) based on an approved Form I-360.
Important note: This form is used to waive the time you are banned from re-entering the United States, if you have overstayed a visa or lived in the United States without a green card, a valid visa or U.S. citizenship. For more specific instructions, see “Who may file Form I-601A?” in the instructions to Form I-601A.
Typically, you can use Form I-601A to file for a waiver if:
- You are physically present in the United States.
- You are at least 17 years of age at the time of filing.
- Have an immigrant visa case pending with the U.S. Department of State. There are key conditions for this, so please refer to the Form I-601A instructions.
The instructions to Form I-601A note that your application will be denied for a range of circumstances. Make sure to refer to the Form I-601A instructions for more information.
How to Apply For a Waiver
The process of applying for a waiver varies between the two forms, so the two processes will be outlined separately.
If you are abroad and a U.S. consular officer has determined that you are ineligible for an immigrant visa or nonimmigrant K or V visa because you are inadmissible to the United States, then you may be able to file an application for a waiver of inadmissibility.
If the consular official has said you are eligible to apply for a waiver, then you file Form I-601 (and Form I-212, if you were deported or removed from the United States) with USCIS. This can be done by mail or online. USCIS will then adjudicate your application and inform both you and the consular officer of the decision. When you submit your form, you must provide supporting evidence and details for the waiver. This will be a lengthy process (average processing time for Form I-601 is between 31.5 and 34 months), and all applications for waivers are carefully reviewed, so make sure you are accurate and complete about the information you submit.
If denied, you may be able to appeal the decision or file a motion to reopen or reconsider the decision (Form I-290B).
Most waivers are valid indefinitely. However, it is only valid for the actions or events listed in your application. If you have any others, you will need to file for a new waiver. Some waivers are conditional or temporary, so refer to the Form I-601 instructions for more information.
Form I-601A is a standalone application, so you cannot file Form I-601A with any other applications, petitions, or requests for immigration benefits. Essentially, you are applying to get a “yes” or “no” answer from USCIS on whether you will be able to have the 3- or 10-year ban on returning to the United States waived if you leave to apply for your green card.
All applicants must be in the United States at the time of filing Form I-601A and appear for a biometrics appointment at a USCIS facility. USCIS may also require that you appear for an interview or provide fingerprints, photograph, or signature at any time to verify your identity, obtain additional information, and conduct background and security checks. This can include an FBI criminal history record check.
The Form I-601A instructions provide detailed information on what to submit as evidence. One of the key criteria is proving that if the waiver is not granted, your U.S. citizen or green card resident spouse or parent (if you’re unmarried) will suffer extreme hardship.
The qualifying relative does not need to be the relative who filed the immigrant visa petition, but he or she must be your U.S. citizen or green card spouse or parent, if you are unmarried. No other direct relatives are considered for this extreme hardship, even if, for example, your brother is sponsoring your green card and would suffer extreme hardship. It must be your spouse or parents, if you are unmarried.
Once you have collected all the evidence and required documentation, you can file the form in the mail or use your USCIS online account. USCIS will then process your application, request biometrics, and might ask for an interview, before informing you of the outcome of your application. The average processing time for Form I-601A is between 8.5 and 11.5 months.
Make sure you carefully read the section of the Form I-601A instructions about your immigration status when applying for this waiver.
Note: USCIS says that the filing or approval of an application for a provisional unlawful presence waiver does not affect your current immigration status in the United States.
If your waiver is approved, you may then leave to return to your country of origin and apply for your green card through consular processing. The waiver will need to be submitted by you with your green card application, as proof that the 3- or 10- year ban does not apply.
USCIS Fee Hike
IMPORTANT: The costs to file inadmissibility waivers through Form I-601 and Form I-601A could get more expensive in the coming months.
In January 2023, USCIS announced plans to increase the filing fees for nearly every visa category, including waivers of inadmissibility. Be sure to check out Boundless’ USCIS fees guide for more updates and what costs you can expect should the proposal be finalized.