Unlawful presence in the U.S. can trigger the 3-year or 10-year bar upon departure. However, certain candidate may be eligible for a waiver (Form I-601/I-601A) if they can demonstrate that denial of admission would cause extreme poverty to a confirm U.S. citizen or Legal Permanent Resident spouse or parent. This open relief is complex. It also requires compelling evidence. Therefore, consult an attorney to assess your ability and ensure a strong application.
By Brian D. Lerner — Practical client guidance, intake checklist, and filing notes for unlawful-presence waivers.
Immigration applicants who accrued unlawful presence in the United States may face mandatory bars to re-entry: the 3-year bar for more than 180 days but less than one year of unlawful presence, and the 10-year bar for one year or more. These bars trigger when a noncitizen departs the U.S. and then seeks admission or consular processing. A Form I-601 (waiver of inadmissibility) or the I-601A provisional unlawful presence waiver may overcome some of those bars when the applicant can show extreme hardship to a qualifying relative (typically a U.S. citizen or lawful permanent resident spouse or parent). Understanding the difference between provisional I-601A eligibility, full I-601 processes, the timing of departure and return, and what counts as “unlawful presence” is essential for correct case triage.
This page gives plain-English steps for intake, the evidence commonly required (hardship statements, financial documentation, medical records), a short table to track waiver options and timelines, and a visible FAQ that answers the questions clients and intake staff ask most often. Adding this visible HTML directly in the post (rather than buried in widgets or PDFs) increases the page’s text-to-HTML ratio and makes the content indexable, accessible, and immediately useful to clients and pro bono intake volunteers.
Intake checklist — unlawful presence waiver
- Confirm dates of U.S. entry and any departures; document periods of unlawful presence with travel/immigration records.
- Identify qualifying relatives (U.S. citizen or LPR spouse or parent) and collect proof of relationship (marriage certificate, birth certificate).
- Gather evidence of hardship: medical records, school records for U.S. citizen children, employment records, financial statements, proof of community ties.
- Note any criminal history, prior removals, or prior waivers — these materially affect eligibility and strategy.
- If eligible for I-601A (provisional) evaluate whether the applicant can remain in the U.S. until adjudication of the provisional waiver before consular processing.
Waiver options & timeline (example)
| Waiver Type | Typical Use | Key Requirement | Processing note |
|---|---|---|---|
| I-601A (Provisional Unlawful Presence) | For spouses/parents of USCs to waive 3/10-yr bars before consular interview | Extreme hardship to qualifying relative; applicant generally must be in the U.S. at filing | Often quicker than full I-601; applicant still departs for consular interview |
| I-601 (Full Waiver) | Used when ineligible for I-601A or for non-unlawful presence grounds | Extreme hardship to qualifying relative; broader eligibility | Processed by USCIS; length varies by field office |
Frequently asked questions
Who is subject to the 3- and 10-year bars?
Noncitizens who accrued unlawful presence — >180 days but <1 year face a 3-year bar after departure; ≥1 year triggers a 10-year bar. The bars apply when the person departs and seeks admission or at consular processing.
What is the difference between I-601 and I-601A?
I-601A is a provisional waiver for unlawful presence that can be adjudicated while the applicant remains in the U.S.; I-601 is the full waiver, typically filed when the applicant is abroad or when other grounds must be waived.
What qualifies as “extreme hardship”?
Extreme hardship is a high standard that requires showing significant physical, emotional, financial, or other hardship to a qualifying relative beyond the ordinary consequences of separation. Examples include severe medical needs, financial collapse, or risk to children’s education; each case is highly fact-specific.
Can a prior criminal record bar waiver approval?
Yes. Certain criminal convictions or immigration violations can render an applicant inadmissible under additional grounds, affecting both eligibility and waiver strategy. Disclose all convictions and consult counsel for a complete assessment.