The Lawful Entry Requirement to Adjust Status in the U.S. (and the alternative, the I-601A stateside waiver process)

A person is only eligible to adjust status based on a family relationship if they entered the country lawfully, namely, if they were inspected and admitted or inspected and paroled. There is one exception to this requirement namely, if a person meets the requirements of section 245(i) of the Immigration and Nationality Act (the “INA”). 245(i) allows individuals to adjust status (receive their green card in the U.S.) even if they do not have a lawful entry IF they are the Beneficiary of an old I-130 petition. The petition must have been filed before April 20, 2001.  

If a person does not meet the criteria for 245(a) or 245(i), the adjustment process must be completed abroad. Unfortunately, the moment a foreign national leaves the U.S. who has lived in the U.S. without status for more than one year, they trigger a 10-year penalty for unlawful presence. This means they are not allowed to apply to come back to the U.S. until they have spent 10 years abroad or obtained a pardon for this unlawful presence in the U.S.  

Thankfully, in order to avoid prolonged separation, President Obama created a process where a person can apply for an unlawful presence waiver BEFORE leaving the U.S. This is called the I-601A stateside waiver process. Before filing a I-601A waiver, an I-130 petition must first be filed. You need to have a qualifying relative (U.S. citizen or Permanent Resident) that is either a spouse or parent. The I-601A waiver is the second step of the process, BUT this process is only available when the ONLY immigration violation is ONE unlawful entry into the U.S. If you have more than one entry without inspection, a person typically is not eligible for this process.  

Also, other immigration or criminal history like immigration fraud, lying on a past visa application, a deportation order, and most criminal violations DISQUALIFY a person from this process. Once the waiver is approved, the next step of the process can be completed. This final step is called the “consular processing” or the “immigrant visa process.   

It is critical to have an attorney evaluate your entire history to determine if eligible for the 601A process. It is a long and costly process so you do not want to start the process unless you are confident that you are eligible to reach the finish line (to become a permanent resident). If you have questions about the adjustment of status process or the I-601A stateside waiver process, call us at 303-872-6985 or email us at here.