Posts tagged “I-601A Waiver”

A relatively obscure ground of inadmissibility—Section 212(a)(6)(B), failure to attend a removal proceeding—is starting to surface more frequently in immigrant visa adjudications. Historically, this provision has been rarely applied. In 2023 and 2024, there were fewer than 100 such findings each year. While official statistics for 2025 are not yet available, visa applicants are increasingly encountering this refusal, suggesting a meaningful shift in adjudication patterns. As with other “flavor of the month” refusals seen during the Trump administration, this trend underscores the importance of reassessing risk before departing the United States for consular processing.

At its core, Section 212(a)(6)(B) imposes a five-year bar to admissibility on individuals who, without reasonable cause, fail to attend a scheduled removal proceeding and then depart the United States. The consequences can be severe for intending immigrants who leave the country expecting a routine visa issuance abroad. This is particularly relevant for applicants who have obtained approval of an unlawful presence waiver (Form I-601A) and assume that the immigrant visa process is a formality. As discussed in a prior blog, departing the United States can expose applicants to new and sometimes unexpected inadmissibility findings, including not only misrepresentation under Section 212(a)(6)(C)(i) through application of the Department of State’s 90 Day Rule, but also failure-to-appear findings under Section 212(a)(6)(B). Worse, there is no immigration waiver for a Section 212(a)(6)(B) decision, i.e, the 5 years is counted from the date of departure from the US and must expire before becoming eligible for the visa.  The result can be a sudden and disruptive bar that derails lives.

That is the question that consuls are greeting nonimmigrant and immigrant visa applicants with at their interviews – no matter how many years ago the incident took place. If the answer to the question about when the work started is 3 months or less, the consuls are making 212(a)(6)(C)(i) misrepresentation decisions on the spot. The consul’s accusation? When you entered the US, you lied to the airport or port inspector about the purpose of your visit – you said “tourism” or “to visit a friend” or to “visit a relative,” but because you started working within 90 days of your arrival, the consul presumes that your true intention at the time of your arrival was to work.

With the arrival of Trump, the US consulates are becoming more and more aggressive in applying the 90 Day Rule. Ciudad Juarez? Check. Buenos Aires? Check. San Jose? Check. Just in the past couple of months, we have seen these decisions from these consular posts, even for applicants who just returned to the home country to apply for an immigrant visa after having an approved I-601A waiver for spending years in the US unlawfully. The consequences are particularly devastating for immigrant visa applicants applying to join their US citizen children in the US (Category IR-5). For them, there is no immigrant waiver available and because they have expressed an intent to immigrate, they will not obtain a nonimmigrant waiver for a long time. Similarly, the consequences are devastating for those applying for an employment-based immigrant visa. Usually, they do not have a “qualifying relative” in the US – either a spouse or parent who is a US citizen or green card holder – and so are not eligible for an immigrant waiver. Even when an immigrant waiver is available, it is now taking nearly 3 years to adjudicate I-601 immigrant waiver applications.