U Visa vs. I601a Waiver pros and cons.

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I-601A:

  1. Requirements: Must prove that qualifying relative would suffer “extreme hardship”-U.S. Citizen spouse or parent, and now, with the proposed President’s new Executive Action-Lawful Permanent Resident spouse or parent.
  2. USCIS Processing Time: 4-6 months for USCIS response, then 2-3 months for consular process abroad.
  3. Benefit: Green Card (includes work permit)
  4. Derivative Benefits: None
  5. Consequences of Denial: Depending on reason for denial could begin removal proceedings, but unlikely if the only reason was due to not proving extreme hardship. Likely only begin removal if some threat to U.S. safety. Likely would receive RFE first before denial

U Visa:

  1. Requirements: Victim of qualifying crime, suffered substantial physical harm or mental abuse, possess information about the crime, cooperated with investigation and or prosecution, crime violated laws of the U.S. or occurred in the U.S., received certification from U.S. Federal, State or Local Government official investigating or prosecuting the criminal act.
  2. USCIS Processing Time: 4-6 months for certification response, At least 1 year
  3. Benefit: Work permit valid for three years, then if eligible, can adjust status within U.S. to obtain Green Card.
  4. Derivative Benefits: can petition for spouse and unmarried children under 21, or if principle under 21, can petition for siblings under 18, and parents and unmarried children under 21.
  5. Consequences of Denial: Very unlikely removal proceedings would be initiated, still possible, but likely only in situations where threat to U.S. safety. Likely would receive RFE first before denial.

Above, is a comparison table of the Provisional Unlawful Presence Waiver (I-601A) and the U-Visa (I-918). The U Visa and Provisional Waiver present different requirements but fairly similar benefits for the main (principal) applicant. If an individual has both options available to them, he or she might choose to apply for the U Visa rather than a Provisional Waiver because of several main reasons.

First, the provisional waiver requires that the qualifying immediate relative (U.S. Citizen spouse or parent) would suffer extreme hardship if the immigrant were to be refused the waiver. This standard is difficult to prove because it requires more than mere financial strain and separation.

While the extreme hardship standard is difficult to satisfy, it is not impossible

Immigration case law provides a list of factors that are considered in a waiver application: health, financial considerations, education, personal considerations, and special factors. Generally, these types of applications are denied when not enough evidence is submitted to prove that there would be extreme hardship. The U Visa also has several requirements, including a certification process; however, comparing the two, the Provisional Waiver’s standard of extreme hardship is much more difficult to prove.

Secondly, the Provisional Waiver can only be used to forgive “unlawful presence”, which is accrued generally after an unlawful entry. If a person has more than one unlawful entry, they do not qualify. On the other hand, the U Visa is very forgiving-even of multiple unlawful entries, working without authorization, and sometimes even criminal convictions.

A third main reason why an individual would choose the U Visa over the waiver is that the U Visa does not require leaving the country. After an individual’s wavier is approved, he or she is required to attend an interview at the U.S. consulate abroad. This can be expensive and also can take several months to get an interview scheduled.

In summary, although both the U Visa and Provisional Waiver have benefits that are similar, the U Visa is far more forgiving, and can be less difficult to get approved.

This blog entry is not, nor is it intended to be, legal advice. This blog is for educational purposes only. Remember that each case is unique. If you have questions about your own immigration case, please contact our Sacramento or San Francisco office at (916) 613-3553 or info@ranchodlaw.com to schedule a consultation.

Published by: Ranchod Law Group



















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