Should You Use the I-601A or I-601 Waiver Application?
There may be some confusion as to when you should use an I-601 waiver or the new I-601A waiver.
With both waivers, eligible applicants may apply to waive the three- or ten-year bars to admission into the U.S. Otherwise, if the applicant has accumulated unlawful time in the U.S., the applicant may be unable to reenter the country and be separated from their U.S. citizen family members for a very long time.
But when does someone use the I-601 waiver or the I-601A waiver?
Immediate Relatives in the U.S. Should Use the I-601A Waiver
Generally, if you are currently in the U.S., you should apply for a hardship waiver using the I-601A waiver.
This will allow you to know before leaving the country whether the potential three- or ten-year bar applies. If a bar applies, it may not be a good idea to leave the country as you will be separated from your loved ones for a very long time
Immediate Relatives Outside the U.S. Should Use the I-601 Waiver
Unfortunately, the I-601A waiver only applies to immediate family members who are still in the U.S. So family members who have already left the country cannot apply for a waiver using this form.
Instead, the old I-601 form would be appropriate. The disadvantage of course being that if your waiver request is denied, you will be subject to the applicable bar and cannot return to the U.S. for the requisite time.
Some had argued that those individuals who properly left the U.S. to avoid the consequences of removal should not be punished for their actions by being unable to use the I-601A waiver. However, the Department of Homeland Security found that allowing the I-601A waiver for family members abroad would be duplicative of the current I-601 waiver process.
Contact a Hardship Waiver Attorney
If you are uncertain whether to file an I-601 or an I-601A waiver, it is important that you talk to an attorney. The difference is critical as an individual who uses the wrong application and subsequently leaves the country could be separated from their family for a very long time.
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