How Do I Get a Waiver for Unlawful Presence? Overview

“How do I get a waiver for unlawful presence?” is a great question that will be answered by this article. Not everyone who has stayed unlawfully in the U.S. will need a waiver. You must overstay for a certain number of days before you need a waiver. Unlawful presence starts to accrue after you have spent more than 180 days past your authorized period of stay. Minors do not start to accrue unlawful presence until after their 18th birthday. Your authorized period of stay is stated on form I-94.

I-601A Unlawful Presence Waiver Eligibility Requirements

There are two types of waivers available for unlawful presence: I-601A Provisional Waiver and I-601 Waiver of Inadmissibility. You apply for an I-601A waiver when you are still physically located in the U.S. before you depart for your consular interview. You apply for an I-601 waiver when you are physically located outside the U.S. and your application for an immigrant visa was denied.

To be eligible for an I-601A provisional unlawful presence waiver, you must be:

  • At least 17 years of age;
  • Physically present in the U.S. to file your application and provide biometrics;
  • In the process of obtaining your immigrant visa and have an immigrant visa case pending with the Department of State;
  • Able to prove that refusal of your admission to the U.S. will cause extreme hardship to your US. citizen or lawful permanent resident spouse or parent; and
  • Inadmissible only because of a period of unlawful presence in the U.S.

If you are in removal proceedings, your case must be administratively closed for you to be eligible. If you have a final order of removal, exclusion or deportation, your form 212, Application for Permission to Reapply must already be approved before you file form I-601A.

Proving “Extreme Hardship”

Extreme hardship means hardship that is greater than what the U.S. relative would experience under normal circumstances if you were denied entry to the United States. It doesn’t have to be the relative that filed for you that will experience extreme hardship. The applicant just has to be your U.S. citizen/LPR spouse or parent.

You must prove that you have enough favorable factors to support the approval of your application. You must also convince the immigration officer that your case warrants a favorable exercise of discretion.

You may submit any evidence to prove extreme hardship, however, there are certain major categories that evidence typically fall into:

  • Health;
  • Financial;
  • Education;
  • Personal;
  • Cultural; and
  • Religious

In addition to proving that there would be extreme hardship in the U.S. you should also provide evidence to show that your relative will encounter extreme hardship if he or she had to relocate with you to the foreign country. Such evidence includes:

  • Country reports issued by the U.S. Department of State;
  • Country reports issued by other governmental or human rights organizations;
  • News articles on events in your home country that will cause extreme hardship to the U.S. citizen/LPR relative.


Filing Fees, Processing Times and Attorney's Fees

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