As stated above, the I-601A waiver forgives unlawful presence in the United States. This means that the applicant would only need to depart the United States to attend the visa interview in his or her home country. This I-601A waiver allows the applicant beneficiary’s to wait in the United States while their waiver application is being processed. A person will only be able to qualify for the I-601A waiver if he or she has a United States citizen spouse or parent.
The first step in applying for an I-601A waiver is the I-130 family petition. The purpose of the I-130 petition is to classify the immigrant beneficiary/applicant as a relative of the petitioner. The approval of the I-130 simply means that United States Citizenship and Immigration Services is satisfied that the applicant is the spouse of the petitioner. Therefore, there must be proof that the marriage is a legitimate marriage, not one solely for immigration purposes. The I-130 is $420 and takes approximately 6-9 months.
After I-130 has been approved, the petition will be forwarded to the Department of State so that two fees can be paid to the National Visa Center. These fees are $120 and $325, and are for the immigrant visa, and the DS-260 application for residence that is completed online.
After the National Visa Center fees are paid, the waiver can be submitted. In order to be approved for an I-601A Waiver, the applicant must be able to demonstrate that refusal of their admission to the United States will cause “extreme hardship” to their qualifying relative—the United States citizen spouse or parent. This includes evidence of financial, medical, educational, and emotional conditions. The cost of the waiver is $670 and takes approximately 4-8 months.
After the waiver has been approved, certain documents must be mailed to the National Visa Center so that the interview at the consulate in the applicant’s home country can be scheduled. One of these documents is the I-864 Affidavit of Support. The purpose of I-864 form is to show that the applicant has adequate means of financial support and is not likely to become a financial charge. If the petitioner does not have enough income and/or assets to maintain the applicant at 125% of the federal poverty guidelines, a joint sponsor who can meet the requirements may submit a Form I-864. All Sponsors must be domiciled in the United States, at least 18 years of age, and a citizen or legal permanent resident of the United States.
After the interview has been scheduled, the applicant will depart to his or her home country for the visa interview. The applicant is required to have a medical appointment with an authorized physician in the country where they will be interviewed, and the medical examination must be completed before the interview. At the interview, a consular office will question the applicant to verify eligibility for an immigrant visa (green card).
A person will not be eligible to apply for an I-601A waiver if her or she is found to be out of status in the United States for more than 365 days, departs the U.S., and then attempts to re-enter the U.S. or is successful in reentering. This means that a person must be in the United States to apply for an I-601A waiver, and must have only one illegally entry and period of unlawful presence in the United States. A person will also be ineligible for and I-601A if he or she has been convicted of a controlled substance offense or a crime involving moral turpitude. A crime of moral turpitude generally is a crime that has the intent to steal or defraud as an element, or a crime in which bodily harm is caused by an intentional act. A person is also ineligible for an I-601A waiver if he or she entered the United States with fraudulent documents, claimed to be a United States citizen, or brought anyone with him or her when entering the United States (alien smuggling).
Here are questions we must ask to determine whether a person is eligible for Adjustment of Status: