Top Reasons 601A Waivers Get Denied (and How to Avoid Them)
Shawn Sedaghat, Esq.
When it comes to applying for a 601A waiver, being informed is key. This waiver, also known as the provisional unlawful presence waiver, allows certain immigrants who have accrued unlawful presence in the U.S. to waive the three- or ten-year bar for reentry after departing for a visa interview abroad. But like any immigration process, not every application gets approved. Here, we’ll walk through the top reasons for 601A waiver denials and what you can do to avoid them.
Understanding the 601A Waiver
The 601A waiver is designed to help individuals who have accrued unlawful presence in the U.S. but are seeking to gain lawful status without facing long separations from their families. By applying for this waiver, immigrants can address their unlawful presence without needing to stay outside the U.S. for extended periods.
One of the core requirements for this waiver is proving that your absence would cause extreme hardship to a qualifying relative who is either a U.S. citizen or lawful permanent resident. But even with a strong case, 601A waivers can sometimes be denied.
Common Reasons for 601A Waiver Denials
Let’s dive into some of the top reasons these waivers are denied and how to tackle each situation.
1. Failure to Prove Extreme Hardship
One of the most common reasons for denial is an inadequate demonstration of extreme hardship. You must prove that your U.S. citizen or lawful permanent resident relative would face severe consequences if you’re not granted the unlawful presence waiver. Simply explaining the difficulties of family separation may not be enough—USCIS needs detailed evidence showing significant hardship.
How to Avoid This Issue
Collect comprehensive documentation for your provisional unlawful presence waivers application. This may include:
- Medical records showing that your qualifying relative depends on you for physical or emotional support.
- Financial documents that demonstrate how your absence would cause severe financial distress.
- Psychological assessments or other evaluations showing emotional and mental strain on your family if you are unable to stay in the U.S.
An immigration attorney can guide you in gathering the correct documents and presenting a compelling argument for extreme hardship.
2. Additional Grounds of Inadmissibility
The 601A waiver only addresses unlawful presence. If you have any other grounds of inadmissibility—such as criminal history, misrepresentation, or prior removal orders—your waiver may be denied. This is because the waiver doesn’t cover these issues, and additional inadmissibility factors must be addressed separately.
How to Avoid This Issue
Consult an immigration attorney to review your background before applying. If other inadmissibility factors are identified, you may need to file additional waivers, like an I-601 waiver, or resolve these issues before proceeding with your 601A waiver application.
3. Incomplete or Incorrect Application
Submitting a form I-601A with missing information or errors is another common reason for denials. Even a small mistake can lead to a rejection, as USCIS is particular about application accuracy and completeness.
How to Avoid This Issue
Double-check every section of the waiver application for accuracy, and make sure all required documents are attached. Enlist the help of an immigration attorney if possible; they can catch errors you might miss and ensure that your application is complete and correct.
4. Ineligibility Under the 90-Day Rule
The 90-day rule applies to individuals who entered the U.S. on a visa but engaged in activities that contradicted their immigrant visa intentions within the first 90 days, such as working or getting married to a U.S. citizen. If USCIS finds evidence that you misrepresented your intentions when you entered the U.S., they may deny your waiver on the grounds of misrepresentation.
How to Avoid This Issue
Avoid any actions that could be interpreted as inconsistent with your immigrant visa status, especially within the first 90 days of entering the U.S. If you already have concerns about the 90-day rule, consult an immigration attorney to discuss your options before applying.
5. Lack of a Qualifying Relative
The 601A waiver requires you to have a qualifying relative, specifically a U.S. citizen or lawful permanent resident spouse or parent. If you cannot show that you have a qualifying relative who would suffer extreme hardship, USCIS will deny your waiver.
How to Avoid This Issue
Verify your eligibility for the waiver before applying. If you don’t have a qualifying relative, you may need to explore other immigration options.
6. Failure to Pay the Required Fees
The 601A waiver application requires payment of fees for both the waiver of inadmissibility and biometrics. Failing to include the correct fee amount or using an incorrect payment method can lead to your application being denied.
How to Avoid This Issue
Check the current USCIS fee schedule and ensure you submit the correct payment amount along with your application. Double-check that the payment method is acceptable to USCIS to avoid unnecessary delays or denials.
7. Active Removal Proceedings
If you’re currently in removal proceedings that have not been administratively closed, you are generally not eligible to apply for a provisional waiver. USCIS will deny applications from individuals with active cases in immigration court, as the waiver process does not cover those in removal proceedings.
How to Avoid This Issue
Speak with an immigration attorney if you’re in removal proceedings. In some cases, it may be possible to have your case administratively closed, which could make you eligible to apply for the 601A waiver.
8. Previous Removal Order or Unlawful Reentry
If you’ve been removed from the U.S. in the past and then reentered unlawfully, this could disqualify you from the 601A waiver due to the permanent bar. USCIS does not grant waivers to individuals with prior removal orders who have reentered unlawfully.
How to Avoid This Issue
Understand your immigration history and how it affects your eligibility. Consulting with an attorney is crucial in this situation, as they can assess whether any other waivers or forms of relief are available to you.
9. No Evidence of Department of Homeland Security (DHS) Compliance
If USCIS finds evidence that you did not comply with previous immigration instructions or orders, your application may be denied. This includes failing to show up for biometrics appointments or neglecting to comply with DHS requests.
How to Avoid This Issue
Follow all USCIS and DHS guidelines carefully. Attend every biometrics appointment, submit requested information promptly, and stay informed of USCIS requirements. Compliance with DHS is essential for a strong waiver application.
10. Denied Due to Lack of Work Authorization
Work authorization issues can sometimes complicate the 601A waiver process. Although work authorization is not a direct requirement for the waiver, some applicants find that unauthorized employment records can become a concern.
How to Avoid This Issue
Keep accurate records of your employment history and, if needed, discuss any unauthorized work situations with an immigration attorney before applying for your waiver. They can help assess any potential impact unauthorized work may have on your application.
What to Do If Your 601A Waiver Is Denied
If your 601A waiver is denied, remember that there are options available to you. Here are steps you can take after a denial:
Reapply with Updated Information
If you have new information that can support a claim of extreme hardship, or if circumstances have changed significantly, you may be able to reapply. This time, strengthen your waiver application with additional evidence, showing how your absence would impact your qualifying relative.
Consult an Immigration Attorney
After a denial, an immigration attorney can provide guidance on what went wrong and help you improve your case for a future application. They can also determine if you should consider other waivers or alternative immigration options.
Consider Alternative Waivers
If additional grounds of inadmissibility were found during your consular processing, you may need to file an I-601 waiver or other waivers to cover issues beyond unlawful presence.
Prepare for a Possible Deportation Hearing
In some cases, USCIS may issue a Notice to Appear (NTA) for a deportation hearing following a waiver denial. If this occurs, make sure to consult an immigration attorney immediately to prepare for the hearing and explore ways to avoid removal.
Conclusion
Applying for a 601A waiver requires careful planning and thorough documentation. By avoiding common mistakes and seeking the guidance of an immigration attorney, you can increase your chances of approval and help secure your path to lawful residence in the U.S.
For expert assistance with your 601A waiver application or to discuss your immigration options, reach out to a trusted immigration lawyer today.
FAQs
1. Can I appeal a 601A waiver denial?
No, USCIS does not allow appeals for 601A waiver denials. However, you can submit a new application if there’s new evidence or significant changes in your circumstances.
2. Does a criminal record affect my 601A waiver?
Yes, a criminal record can complicate the waiver process, especially if the conviction results in additional grounds of inadmissibility. Consult an attorney to understand the implications of your record.
3. What should I do if I don’t have a qualifying relative?
Without a qualifying relative, you won’t be eligible for a 601A waiver. In this case, an immigration attorney can help explore other possible immigration options.
4. Will USCIS issue an NTA if my waiver is denied?
In some cases, USCIS may issue a Notice to Appear (NTA) after a denial. If you receive an NTA, it’s essential to consult with an immigration attorney to prepare for your hearing.
5. Can I work while my 601A waiver application is pending?
The 601A waiver does not provide work authorization. You would need to apply for a separate work permit if you qualify for one through another immigration benefit.