Understanding I-601A Extreme Hardship and I-601 Waiver Requirements

If you plan to immigrate to the United States, certain violations may prevent you from adjusting status within the country or bar you from returning after leaving. This is called being "inadmissible," commonly known as a "bar."

The Immigration and Nationality Act sets out many grounds of inadmissibility, including health issues, criminal activity, national security, public charge, lack of labor certification, fraud and misrepresentation, prior removal, and unlawful presence in the United States. For example, unlawful presence of more than 180 days triggers a 3-year bar; unlawful presence of more than one year triggers a 10-year bar.

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If you are found inadmissible, you may still be able to apply for a waiver. Applicants abroad file Form I-601, while applicants in the United States file Form I-601A. The requirements for 601 and 601A waivers are complex, the process is lengthy, and success is not guaranteed, but for applicants already deemed inadmissible, it remains a path worth attempting.

The following sections explain in detail the requirements for the I-601A "extreme hardship" waiver and the I-601 waiver.

Form I-601A applies to applicants who entered the United States unlawfully but have an immediate U.S. citizen or green card family member (such as a parent or spouse) in the United States. To apply for a green card, such applicants must leave the United States and apply at a U.S. embassy or consulate. To avoid the three- or ten-year entry bar, they need to apply for an inadmissibility waiver so they can re-enter the United States.

Eligibility for the 601A Waiver

Generally, applicants who meet the following conditions may apply for a waiver using Form I-601A:

• The person is physically present in the United States.

• The person is at least 17 years old at the time of filing.

• The person has an immigrant visa case pending with the U.S. Department of State.

• If the waiver is not granted, the applicant's U.S. citizen or green card spouse (or parent) would suffer extreme hardship.

Form I-601A is a standalone application and cannot be filed together with other applications, petitions, or requests for immigration benefits. In essence, you are asking USCIS to waive the 3-year or 10-year bar so that you can proceed with a green card application. At the time of filing, the applicant must be in the United States and must have fingerprints taken at a USCIS facility; an interview may also be required, or photos, signatures, and other information may be requested for background and security checks.

The key requirement for an I-601A waiver is to prove that, without the waiver, your U.S. citizen or green card spouse (or parent) would suffer extreme hardship. The person suffering hardship does not have to be the one who filed the immigration petition for you, but must be your spouse or parent and must be a citizen or green card holder. If other relatives, such as siblings, would suffer extreme hardship, that cannot be used as the basis for an I-601A waiver.

After gathering all evidence and necessary documents, you may submit the form by mail or through your USCIS online account. USCIS will process the application, take fingerprints, and may request an interview, after which it will notify you of the result. The filing fee for I-601A is $630, and the average processing time is 8.5 to 11.5 months.

Filing or obtaining approval of a provisional unlawful presence waiver application will not affect your current immigration status in the United States. If the waiver is approved, you may return to your home country and apply for a green card through consular processing. When applying for the green card, you must submit this waiver as proof of exemption from the 3-year or 10-year ban.

Key Requirements for the 601A Waiver

Under U.S. Citizenship and Immigration Services (USCIS) policy, if the applicant can provide sufficient evidence that their U.S. citizen or lawful permanent resident relative would face any of the following situations, the U.S. government will approve the waiver:

• If the U.S. government does not allow the applicant to come to the United States to live with their U.S. relative, the U.S. relative would suffer extreme hardship in the United States, or

• If the U.S. relative follows the applicant to the applicant's home country in order to be reunited, they would suffer extreme hardship in the home country.

In appropriate circumstances, you may attempt to prove that your U.S. relative would suffer extreme hardship in both potential scenarios. However, if only one scenario would cause extreme hardship to the relative (for example, separation between the two countries would cause extreme hardship, but having the U.S. relative relocate abroad with you would have little impact), you need to prepare evidence showing that the scenario causing extreme hardship is the one you and your U.S. relative would choose, and explain why—continuing with the example above, you need to prove that you would choose separation rather than having the U.S. relative relocate abroad with you, and explain the reasons for that choice.

The qualifying U.S. relative does not have to be the sponsor of your immigration petition. For example:

You came to the United States on an F-1 student visa, dropped out, and stayed in the United States for two years, becoming inadmissible due to overstaying. You married a U.S. citizen who plans to file a marriage-based green card petition for you. He works at a tech company with a good income and can work remotely from anywhere in the world, so it would be difficult to convince USCIS that "he would suffer extreme hardship if I am not in the United States with him, or if he moves back to China with me." Note that mere separation from a loved one does not qualify as "extreme hardship" recognized by USCIS. However, if your mother is also in the United States, is a citizen or green card holder, and has poor health and relies on your care and emotional support, you can apply for a waiver on the ground that "if I cannot stay in the United States, it would cause my mother extreme hardship," even though it is your spouse, not your mother, who filed the green card petition for you.

U.S. immigration agencies and courts define 'extreme hardship' as hardship 'beyond the normal.' Therefore, merely proving that your U.S. relative would miss you is not enough, because such emotional separation is normal in any type of separation. However, what constitutes 'normal circumstances'? Where is the line between it and 'extreme' hardship? Immigration law does not provide a clear explanation. Therefore, the evidence in each waiver application will be reviewed on a case-by-case basis.

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Extreme Hardship Caused by Separation from the U.S. Relative

If the U.S. relative remains in the United States while you must stay abroad (or are deported abroad), arguments for "extreme hardship" may include:

• The U.S. relative has medical issues, or has a sick family member, and relies on you for care.

• The U.S. relative depends on you financially, and you would be unable to provide sufficient support once you move abroad.

• The U.S. relative has children to raise and cannot afford childcare alone without you.

• The U.S. relative has been diagnosed with conditions such as depression due to your immigration situation.

Every person's situation is different. The above are only common examples, and you should prepare your materials based on your own circumstances.

The U.S. Relative Moves with You to Your Home Country

If the U.S. relative moves with you to your home country, more common extreme hardship arguments include:

• The home country is in or on the verge of war and/or political instability.

• The U.S. relative has serious medical problems that cannot be adequately treated in the home country.

• The U.S. relative would face discrimination in the home country.

• The U.S. relative does not understand the language of the home country.

• The U.S. relative has a sick family member and is their primary caregiver.

• The U.S. relative would have difficulty finding suitable employment in the home country.

• The U.S. relative's education would be interrupted.

• The U.S. relative has other children (for example, children from a former spouse), who cannot go with them to your home country due to custody or other issues.

• The home country has a high crime rate.

• The U.S. relative has debts in the United States and would be unable to repay them if they move back to your home country with you.

Every person's situation is different. You should prepare your materials based on your own circumstances.

Providing Evidence of Extreme Hardship

In the waiver application, you need to submit evidence, including a personal statement from the U.S. relative. Your relative should describe all types of extreme hardship that living outside the United States would cause, and/or the hardship that would result from being in the United States without you.

As a foreign-born person, you may also submit a personal statement to support your U.S. relative's arguments and provide deeper insight into conditions in your country of origin. But remember, the focus should not be on your hardship, but on how these circumstances would affect your U.S. relative.

The arguments in these statements should ideally be supported by materials, including but not limited to:

• Country reports issued by the U.S. Department of State or other government or human rights organizations outlining human rights or other difficult conditions in your home country that would cause the U.S. relative extreme hardship.

• Doctor's diagnoses/letters as evidence that physical and/or emotional conditions would cause the U.S. relative extreme hardship.

• Copies of tax returns and/or pay stubs for household income.

• Copies of statements showing debts that need to be resolved in the United States.

• Copies of professional and/or educational credentials of the qualifying U.S. relative.

• News articles reporting recent events in your home country that would cause the U.S. relative extreme hardship.

• Letters from relatives, professionals, and/or friends who can corroborate certain arguments of extreme hardship.

The Impact of Extreme Hardship on Children

Your citizen/green card child may not necessarily qualify as a qualifying relative for the 'extreme hardship' waiver—this depends on the type and reason of the ban you face. Some applicants mistakenly focus on children who do not qualify, leading to denial of their applications.

If your child is not a qualifying relative, but the hardship faced by the child would also cause hardship to your qualifying U.S. relative, you may still explain this. For example, if your child requires special medical care unavailable in your home country, this would force your U.S. spouse to give up their job and career and take on caregiving responsibilities, which may be considered extreme hardship to the U.S. spouse.

The I-601 Waiver Filed from Abroad

If you are found inadmissible for admission to the United States as an immigrant or for adjustment of status (including certain other visa categories), you may use Form I-601 to apply for a waiver. Before applying, be sure to carefully read the Form I-601 instructions to understand which grounds of inadmissibility can be waived for your visa category.

Fee: The filing fee for Form I-601 is $930.

Generally, applicants who meet the following conditions may apply for a waiver using Form I-601:

• Applicants for immigrant visas, K visas, or V visas who are currently outside the United States, have completed a visa interview with a consular officer, and were found inadmissible at the interview.

• Persons applying for Temporary Protected Status (TPS).

• Persons adjusting status under the Nicaraguan Adjustment and Central American Relief Act.

• Immigrant visa or adjustment of status applicants who are Violence Against Women Act (VAWA) self-petitioners or children of such petitioners.

• Persons applying to adjust status based on T nonimmigrant status.

• Persons applying to adjust status as Special Immigrant Juveniles (SIJ) based on an approved Form I-360.

If you are abroad and a U.S. consular officer finds you inadmissible and therefore ineligible for an immigrant visa or a nonimmigrant K or V visa, you may be eligible to file an inadmissibility waiver application.

If the consular officer indicates that you are eligible to apply for a waiver, you should submit Form I-601 (and Form I-212 if you have previously been deported or removed) to USCIS. This can be done by mail or online. USCIS will adjudicate your application and inform you and the consular officer of the decision. You must provide supporting evidence and detailed information when filing. This is a lengthy process (the average processing time for Form I-601 is 31.5 to 34 months), and all applications undergo strict review, so make sure the information submitted is accurate and complete.

If the application is denied, you may choose to appeal using Form I-290B or file a motion to reconsider or reopen the case.

Most waivers are valid indefinitely, but only apply to the acts or events mentioned in the application. If other circumstances arise, a new waiver must be filed. Some waivers are conditional or temporary; see the Form I-601 instructions for details.