Most people know that there are strict requirements for obtaining status as a permanent resident and that certain issues in a person’s immigration history, such as staying in the U.S. too long or having a problem with an earlier immigration application, can create obstacles.
What is less well known is that those problems do not always mean the end of the process. In some situations, a waiver may be available. The challenge is understanding whether a waiver applies and, if so, which one.
Immigration Waivers Are Not One-Size-Fits-All
A waiver is essentially a request asking the government to excuse, or waive, a particular immigration issue that might otherwise prevent someone from receiving permanent residency.
But different issues require different types of waivers. That is why it is important to understand exactly what in a person’s immigration history may be creating the issue before deciding what to file.
For example, someone may be concerned because they remained in the United States after their authorized stay expired. Another person may have had a problem with information provided in an earlier immigration application. Someone else may have a prior removal or criminal history that needs to be evaluated.
Those situations are not handled in the same way and require a thorough analysis.
Two Waivers That Are Often Confused
Two of the better-known immigration waivers are Form I-601 and Form I-601A. Their names are similar, but they are used in different circumstances.
The I-601 waiver can be used to address certain grounds of inadmissibility, depending on the facts of the case. Typically, this waiver is submitted when the applicant is outside the U.S. In limited circumstances, it may be applied when the applicant is in the U.S.
The I-601A is more specific. It is intended for certain people who need a waiver because of unlawful presence in the United States and/or having entered the U.S. unlawfully. These are individuals who must leave the country to complete the immigrant visa process.
One of the important features of the I-601A is that an eligible person can apply for the provisional waiver before leaving the United States for the required consular interview.
That distinction can be extremely important for families.
Why the Details of Your History Matter
Someone may know that they overstayed a visa and assume that unlawful presence is the only issue they need to address.
But there may be other parts of their immigration history that matter as well.
Previous entries and departures, prior applications, removal proceedings, statements made to immigration officials, or criminal matters can all affect how a case should be handled.
An I-601A waiver, for example, addresses unlawful presence. It does not automatically resolve other potential immigration problems.
That is why it is important to look at the entire history before someone leaves the United States or files a waiver application.
Start With the Problem, Not the Form
Immigration forms can make the process seem straightforward: identify the form, fill it out, and submit it.
Waiver cases are rarely that simple.
The better starting point is to understand what, if anything, in your immigration history could prevent you from receiving permanent residence. From there, an immigration attorney can determine whether a waiver or another form of relief may be available and what steps make sense for your particular situation.
Many factors can affect a person’s path to permanent residency. Speaking with an experienced immigration attorney can help you understand how those factors apply to your case and what options may be available.
Nancy Norman is an experienced immigration attorney at Horrigan & Norman who helps individuals and families understand their options and move forward with confidence. She represents clients in a range of immigration matters, including permanent residency, immigration waivers, family-based immigration, and other issues that can affect a person’s ability to remain in or return to the United States.
