I-601 VS I-601A Waiver: What is the Difference?

People that are inadmissible or ineligible to immigrate to the United States with an immigrant visa, or adjust status to a permanent resident, may be eligible for a waiver. This can “waive” the ground of inadmissibility and assist them in receiving lawful permanent residence or green card status. There are many grounds of inadmissibility, but only some of them are waivable. If you are inadmissible for a reason where a waiver is available, you should file Form I-601 (Application for Waiver of Grounds of Inadmissibility) to waive the ground of inadmissibility that prevents you from entering the United States. However, in certain circumstances, you may qualify under Form I-601A (Application for Provisional Unlawful Presence Waiver). In this text, we will explain who is qualified for either of these forms, as well as highlight key differences between the I-601 VS I-601A waiver.

Form I-601 – Application for Waiver of Grounds of Inadmissibility

If an individual is ineligible to be admitted to the United States as an immigrant or to adjust status in the United States, they must file this application to seek a waiver of certain grounds of inadmissibility. This also refers to certain nonimmigrant applicants who are inadmissible.

Whether or not you are eligible for a waiver depends on the immigration benefit you are seeking, as well as the reason for your inadmissibility. Grounds of inadmissibility include:

• Health-related grounds of inadmissibility
• Certain criminal grounds of inadmissibility, or immigration fraud, or misrepresentation
• Inadmissibility due to immigrant membership in a totalitarian party
• Inadmissibility due to immigrant smuggling
• Inadmissibility due to the 3-year or 10-year unlawful presence bar
• Aliens previously removed (NACARA and HRIFA) 
• Unlawfully present after previous immigration violations (NACARA, HRIFA, and VAWA I-360)

Form I-601A – Application for Provisional Unlawful Presence Waiver

The I-601A, also called the provisional waiver, only waives one ground of inadmissibility – unlawful presence. If you have been unlawfully present in the United States for more than 6 months but less than a year, or for more than a year and you leave the United States, you will trigger a 3-year or 10-year bar. This bar will prevent you from returning to the United States and applying for permanent residency. This is the main reason why many immigrants that already live in the United States may not leave the country to apply for an immigrant visa or lawful permanent residency. They don’t want to risk leaving their families for 3 to 10 years while they wait for their bar to be lifted.

The provisional waiver was created in 2013 and expanded in 2016. Instead of leaving the country, filing the I-601 Waiver of Grounds of Inadmissibility for unlawful presence, and then waiting up to a year while it is being processed, the new procedure allowed applicants to apply provisionally for the waiver while still in the United States, avoiding family separation. After the waiver has been approved, the applicant would travel to their home country to proceed with consular processing and obtain an immigrant visa.

I-601 VS I-601A waiver – what is the difference?

The main difference in the correlation I-601 VS I-601A waiver is that the I-601A only waives unlawful presence. This means that unlawful presence needs to be the only ground of inadmissibility against an applicant if he is to file Form I-601A. Applicants that have other issues affecting their inadmissibility and that may need other waivers (due to criminal conviction or having committed immigration fraud) would not be eligible for this process throughout the provisional waiver (I-601A).

In recent years consular processing is getting stricter and more difficult. That is why we see an increasing number of cases where applicants think that their only issue is their unlawful presence. So it happens that they apply for the I-601A waiver, and upon its approval, they travel to their home country. Their troubles start when attending their visa interview at the consulate and another ground of inadmissibility is found. At that point, the I-601A approval would be rescinded since it is no longer the only ground of inadmissibility. The applicant must then file the I-601 waiver to waive that ground of inadmissibility, as well as address their unlawful presence, which would delay their return to the United States. However, since the grounds for I-601 VS I-601A waiver are identical in most scenarios, having the I-601A approved (even if it is rescinded later) is a strong indication that the I-601 waiver will be approved as well.

As waiver cases can, more often than not, be very complicated with the burden on the applicant to demonstrate that they meet all of the required qualifications, it is very important to contact your Chicago immigration lawyer to discuss the various grounds of inadmissibility. Also, if you are a candidate for an I-601 or I-601A waiver you need to ensure the proper filing of your case if you wish to put yourself in the best possible position to obtain permanent residency.