I-601A: Provisional Pardon
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To be eligible for the I-601A Provisional Waiver for Unlawful Presence, you are required to meet ALL of the conditions listed below:
- Be at least 17 years old.
- Be in the United States (physically present) to be able to present your illegal presence I-601A Provisional, as well as to collect your biometric data.
- Have a pending case with the US Department of State based on an approved immigrant visa application for which you paid the immigrant visa processing fee to the Department of State. This can be family or work.
- You have been selected by the Department of State to participate in the Diversity Visa Program. This comes under Section 203 © of the Immigration and Nationality Act.
You will have to leave the US to get the immigrant visa.
You must be able to meet the requirements of the waiver as provided by section 212(a)(9)(B)(v) of the Immigration and Nationality Act. This includes the ability to clearly show that your removal from the United States would cause extreme hardship to your US lawful permanent resident or US citizen parent or spouse.
Your inadmissibility for being unlawfully present in the US is for more than 6 months but less than 365 days during a single stay. This is in accordance with Section 212(a)(9)(B)(i)(I) of the INA).
If ANY of the following conditions apply to you, you will NOT be eligible for the I-601A Provisional Waiver for Unlawful Presence
- Your age is below 17
- You do not have any pending cases with the US Department of State based on an approved visa application for which you paid an immigrant visa processing fee to the Department of State. This can be family based or employment based.
- You have not been selected by the Department of State to participate in the Green Card program (Diversity Visa program under section 203 (C) of the law).
There are one or more grounds of inadmissibility other than unlawful presence.
- You have a pending Form I-485 Application to Adjust Status or Register Permanent Residence with USCIS that is still pending.
- Removal proceedings have already been initiated, unless the proceedings have been administratively closed and have not been sent to the Executive Office for Immigration Review (Department of Justice), to continue your removal when you file Form I-601A.
- An administratively final order has already been issued for your removal, deportation or exclusion under the law, even in absentia (Section 240 (b) (5) of the Act). The exception is if you have already filed and the US Citizenship and Immigration Services (USCIS) has already approved consent to reapply for admission under section 212(a)(9)(A)(iii) of the Act and 8 CFR 212.2(j) (meaning you filed and received approval for the I-212 waiver).
- The US Customs and Border Protection (CBP) or the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) have reinstated a prior removal order under section 241(a)(5) of the Act, once you have served under 8 CFR 241.8, prior to the filing of the waiver application or while the unlawful presence waiver application is still pending.
- You cannot show that your removal or deportation from the United States would cause extreme hardship to your legal US resident or US citizen spouse or parent.
The health of the qualifying relative
This includes requirements for a physical or mental condition, ongoing treatment, the need for specialized treatment that may not be available in the country of relocation, the quality of medical care in the country to which the qualifying relative will be relocated, the length of treatment, nature or disease (whether chronic or acute or not), and other factors.
Extreme difficulty
The foreign national is required to show that the qualifying relative, one who is a legal US resident or US citizen or US citizen spouse, risks extreme hardship if separated from the beneficiary. It is important to note here that hardships for a foreign citizen are only taken into account as long as they become a source of hardship for a permanent resident of the United States or a citizen of the United States (spouse or parent).
US Citizenship and Immigration Services (USCIS) officials typically consider the following factors when deciding whether there is a possibility of extreme hardship in each case.
Financial considerations
This is another factor taken into account when deciding whether relocation would cause extreme hardship for the qualifying relative. Factors that come into play here include; selling a home or business; decrease in standard of living (due to the move); termination of a professional practice; the potential to recover from short-term financial losses; other costs, including special education for children and the cost of caring for family members that include sick and elderly parents.
Education
Education is also considered when trying to determine whether or not the possibility of extreme hardship exists in individual cases. Factors that fall into this category include; lower quality of education in the country to which the qualifying relative will be relocated, limited opportunities for higher education, interruptions to programs that are currently in progress, the need to learn a foreign language before receiving an education in the country of relocation that leads to a waste of time, the availability of special requirements in the country of relocation, including internships in a specific field.
Personal considerations
This is another important consideration that influences whether extreme hardship will be established in individual cases. Factors that fall into this category include; the length of time the applicant has been a resident of the United States and the community ties they now have in the country, separation from children or spouse; the ages of the parties involved (mainly qualifying relatives); close relatives in the US and close relatives in the country of relocation.
Special considerations
Special considerations are also taken into account including; ethnic, cultural, linguistic and religious obstacles, fear of persecution, physical harm (for example, fear of imprisonment, social ostracism, stigma and the access that is available in the country of relocation to necessary social structures and institutions).
Aditional Information
There may be other information that highlights your personal circumstances and may also show the possibility of extreme hardship for a qualifying relative who is a United States citizen or lawful permanent resident of the United States. This will be accomplished by carefully consulting with your attorney to prepare your case.
Normal difficulty vs. extreme difficulty
The important thing to note here is that spouses are required to prove that their separation will cause more than the normal hardship that is triggered by family separation. Financial hardship is, for example, by itself insufficient to qualify as extreme hardship, as it is a common occurrence in family separation.
The process
Applicants must submit the following:
- I-601A Application for Provisional Waiver;
- Petition Approval Notice;
- Immigrant visa processing fee receipt from the Department of State;
- Proof of relationship with a qualifying relative;
- Citizenship status of the qualifying relative;
- A clear, well-written statement of extreme hardship;
- Personal affidavits;
- A complete set of supporting documents
All of this is necessary to convince USCIS officials that the suffering that will accrue from the separation of spouses and parents will be worse than the suffering experienced in similar situations.