The I-601 (under Section 212(a)(9)(B)(v) and Section 212(i))of the Immigration and Nationality Act) waives the “unlawful presence” and “misrepresentation” grounds of inadmissibility for foreign nationals if they can demonstrate that their U.S. citizen or lawful permanent resident spouse or parent would suffer “extreme hardship” if the foreign national is not allowed to remain in (or return to) the United States. A US citizen fiancé(e) may also be a qualifying relative for purposes of the waiver according to 9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i).
Background on Unlawful Presence
Foreign nationals who voluntarily depart the United States after accruing over 6 months of “unlawful presence” in the United States are deemed ineligible to re-enter the U.S. for three years starting from the date of their departure.
Foreign nationals who depart the United States after accruing over 12 months of “unlawful presence” in the United States are deemed ineligible to re-enter the U.S. for ten years starting from the date of their departure.
Unlawful presence is any period in which a foreign national is present in the U.S. after expiration of their period of authorized stay (e.g. after the expiration date found on the ir I-94 entry/departure card) or after entering the U.S. without being admitted or paroled (e.g. after entering the U.S. illegally without inspection).
This “unlawful presence” ground of inadmissibility typically poses a problem for spouses of U.S. citizens who entered the U.S. illegally without inspection (e.g. through the U.S-Mexican border).
Although these spouses are eligible to apply for U.S. lawful permanent residency through their marriage to a U.S. citizen, they cannot adjust their status while remaining in the U.S. (with the small exception of those who qualify under the INA 245(i)).
Thus, these spouses must eventually return to their home country for an interview at the U.S. embassy/consulate as part of the process of obtaining U.S. lawful permanent residency.
This departure from the U.S. and application for (re)admission triggers the “unlawful presence” bar described above.
Background on Fraud or Misrepresentation
INA 212(a)(6)(C)(i) states:
In general. – Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.
Only foreign nationals who make representations or use fraud to secure a visa, admission, or some other benefit under the Immigration and Nationality Act are excludable under this section. People who make misrepresentations in other contexts such as to obtain employment or Social Security cards would not be excludable under this section. This waiver is not available to immigrants who are subject to the 212(a)(6)(C)(ii) ground of inadmissibility for false claims to US citizenship (unless the false claim was made before September 30, 1996).
The “misrepresentation” bar bans a foreign national for life from entering the United States unless a waiver is obtained.
The I-601 waiver allows the unlawful presence and misrepresentation grounds of inadmissibility to be waived and the foreign national to successfully return to the United States as a lawful permanent resident.
USCIS Update as of June 4, 2012
As of June 4, 2012, foreign spouses who are already abroad, have applied for immigrant, K, or V visas, and have been found ineligible by a U.S. Consular Officer, can mail their I-601 and I-212 waiver applications directly to a U.S. Citizenship and Immigration Services (USCIS) Lockbox facility in the United States.
The provisional waiver allows certain immediate relatives of U.S. citizens to apply for a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States if they can demonstrate that being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative “extreme hardship”.
This would mean that the “risk” of going abroad to process for a K or immigrant visa is significantly reduced since a provisional waiver approval has already been received before the applicant departs the United States.