Have an I-601A Approval? Think Twice Before Leaving the United States.

Posted on August 15, 2024

After waiting years, your I-601A Application for Provisional Unlawful Presence Waiver was approved. Congratulations. And now it’s time to travel outside the US, apply for and receive an immigrant visa, and return to the US with a clean slate, right? Well, not necessarily… Not if ill-intentioned or overzealous consular officers have anything to do with it.

There is a popular misconception that if you have an approved I-601A, USCIS has reviewed the entirety of your immigration history and forgiven any violations. That is wrong. USCIS has only considered your unlawful presence violation and found extreme hardship to your qualifying relative. But do you remember that visa that you applied for 25 years ago? And that you later used that visa to enter and remain in the US? The consular officer has not forgotten.

Now, in such situations, these officers are increasingly entering permanent bars for a Section 212(a)(6)(C)(i) willful, material misrepresentation. For example, in 1999, you indicated in your visa application that you were going to Disney World for a week. And you may have indeed traveled to Disney World and returned home after a week. But later, you used that same visa and ended up staying 24 years. To legalize your situation, you submit the I-601A. When you receive the approval while in the US, you think that any legal obstacles to receiving the immigrant visa have been removed, so believe it is “safe” to travel outside the US for your immigrant visa interview. And that’s when the real problem can start…

At your immigrant visa interview, the consular officer may ask how you supported yourself after your arrival and when did you start working. Admitting that you started to work within 90 days of arrival could lead to a consul finding a violation of the so-called 90 Day Presumption: that you must have lied to the airport or port-of-entry inspector when you arrived about your true intention, prompting the consul to make a misrepresentation decision.

The consequences are tragic. In such a case, you would have to go through the waiver application process all over again — currently that processing time is greater than 2 years. Only this time you will be stranded outside the US. You would have to again prove extreme hardship to your qualifying relative in the US — and hope that nothing happens to your qualifying relative during that time period.

When the I-601A process was initiated, no one could have anticipated that consular officers would take the opportunity to vindictively and punitively re-open cases from more than 20 years ago. Many of the consuls feel deceived: “you fooled us once — we made the mistake of giving you a visa, and you abused that trust. You were able to benefit by that misrepresentation by staying in the US all those years. Now, you will pay the price." They actively review visa applications from that time to look for discrepancies and inconsistencies. They actively interrogate the person, focusing on the dates of entry and how quickly they commenced working.

Living in the US for years and years and years without problems and receiving the I-601A approval can lull you into a false sense of security. Think twice before leaving, particularly after the Supreme Court’s recent decision in Department of State v. Munoz, upholding the insulation of consular visa decisions from judicial review. A judge won’t save you if you are stranded outside the US. Consult with a qualified lawyer before taking that potentially destiny-changing step of departing the United States.

Tags: 212(a)(6)(C), 212(a)(9)(B), 90 Day Rule, Department of State v. Munoz, Extreme Hardship, I-601A, Provisional Waiver, Unlawful Presence