Can I Apply for an I-601A Waiver If Under an Order of Voluntary Departure?

One of the most frequently asked questions about I-601 Waivers we get in our Sacramento office is whether someone can apply for the I-601A provisional unlawful presence waiver if they have an order of voluntary departure.

The answer to this question depends upon whether the order of voluntary departure is outstanding or if it has been administratively closed and not recalendared.

Outstanding Order of Voluntary Departure

In short, someone with an outstanding order of voluntary departure is not eligible to apply for the I-601A provisional unlawful presence waiver. The instructions to the Form I-601A waiver specify eight circumstances where an applicant is ineligible to apply for the waiver. These include someone going through removal proceedings as well as someone subject to a final order of removal. This includes an order of voluntary departure.

Administrative Closure and Termination of the Order

If an applicant for the I-601A waiver is able to have the Immigration Court reopen the voluntary departure order and then close the case and terminate the order, the individual may become eligible for the provisional unlawful presence waiver.

When the rules for the provisional unlawful presence waiver were drafted, many commenters wanted the government to allow individuals under a voluntary departure order to be eligible for the waiver. However, after consideration of all the issues, the Department of Homeland Security decided to limit eligibility for the provisional unlawful presence waiver to only those individuals whose removal proceedings were administratively closed and have not been recalendared.

For cases that are not considered to be enforcement priorities, Immigration and Customs Enforcement (ICE) will typically exercise its discretion where appropriate and may move for administrative closure for certain voluntary departure orders. If the voluntary removal order is administratively closed, an individual should seek termination or dismissal of the proceedings with the help of a Sacramento hardship waiver attorney.