Application for Provisional Unlawful Presence Waiver (I-601A Waiver)

There are many people without legal status in the U.S. If you are one of them, you cannot be granted permanent residency even if you find a sponsor. However, there may be a way if your parents or spouse are citizens or permanent residents. This is because you can apply for a waiver (I-601A Waiver).

I-601A exemption works as follows: If you stay in the U.S. unlawfully for more than 6 months after turning 18, you are barred from returning to the U.S. for 3 years once you leave the U.S. If you have stayed in the U.S. for more than 1 year, you are banned from entering the U.S. for 10 years. The I-601A offers a way to resolve this entry ban by allowing you to file the application in the U.S. and receive an immigrant visa in Korea. Before this measure was implemented, you had to leave the U.S. and apply for an exemption in Korea. However, it was difficult to leave the country because reentry to the U.S. could not be guaranteed.

If your parents or spouse are U.S. citizens or permanent residents, you can apply for permanent residency as an employment-based immigrant through the waiver application. However, it is not possible to obtain a green card through status adjustment (I-485) in the U.S. Instead, if your immigration petition (I-140) is approved, you can apply for a waiver at USCIS after paying a fee to the Department of State. If the waiver application is approved, you can receive an immigrant visa from the U.S. Embassy in Korea through the Department of State procedures and reenter the country.

However, even if the application is approved, the basic conditions for employment immigration must be satisfied. In other words, if you receive a green card, you must show your intent to work for a sponsoring company. For example, if you have a very close (familial) relationship with the employer or if the company does not cover the cost of the first step (LC) of the green card process, it is not considered a normal job offer (bona-fide job offer) and may be rejected at the interview.

In addition to family/employment immigration, religious immigration is also possible. You can apply for the waiver after a petition for religious worker (i-360) is approved. Also, you may apply for the waiver even if you have entered the U.S. unlawfully if your parents or spouse are citizens or permanent residents.

If your child does not have a legal status but is under the age of 18, you do not need to file an I-601A waiver. Time spent in the U.S. before the age of 18 does not constitute an unlawful presence under immigration law. Therefore, if your child leaves Korea before turning 18, he/she can get an immigrant visa from Korea without the need to apply for a waiver.

Approval of waiver applications can be difficult. The applicant must explain that the failure to reenter the U.S. can result in extreme hardship for the permanent resident/citizen parents or spouse who are in the U.S. This is not easy. However, there are cases in which the applicant’s income is the main source of financial support for the family or care for a disabled parent or spouse.

If you can convince the immigration office of these difficulties with objective data, your application can be approved. If you do not have a criminal record in Korea or the U.S., you can apply for a waiver and receive an immigrant visa. However, it is necessary to get accurate and appropriate advice before applying.

Law Offices of Gary J. Kim
3731 Wilshire Boulevard, Suite 502
Los Angeles, CA 90010
(213) 427-6262
info@gjklawgroup.com