A Self-Test – do you qualify for an I-601A Waiver of Unlawful Presence?

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This self-test may give you an idea whether or not you could apply for the I-601A waiver

© Attorney Farhad Sethna, 2013

Caution:  the limitations of this assessment

Due to the complex nature of immigration law, deportable and inadmissible offenses, and the differing criteria to qualify for waivers, this assessment is NOT intended to substitute for qualified legal advice or result in a guaranteed outcome.  It is simply presented for you to evaluate whether you may or may not qualify for an I-601A Waiver of Unlawful Presence.  If you are unclear about whether to answer “Yes” or “No” to any of these questions, consult an attorney.  If you want to find out what the consequences of either a “yes” or a “no” answer may be and the way you can move to the next question, consult an attorney.  Once you have completed this review, please contact a qualified immigration attorney for a detailed examination of your case.  You may show this questionnaire to your attorney as long as you make sure that you or anyone else does not copy or use it for his or her personal gain, and that this questionnaire is attributed to me.

Assessment:

1. Are you now unlawfully present in the USA (example – entered illegally)?

Yes: Move to the next question.

No: Stop here – you do not need the waiver at this time.

2. Have you been unlawfully present in the USA for more than 6 months?

Yes: Move to the next question.

No: Stop here – you do not need the waiver at this time.

3. Are you at least 17 years old?

Yes: Move to the next question.

No: Stop here – you cannot file the waiver at this time.

4. Are you an immediate relative of a U.S. Citizen? (An immediate relative is a spouse (husband/wife), parent or child under age 21)

Yes: Move to the next question.

No: Stop here – you cannot file the waiver at this time.

5. Has your U.S. Citizen immediate relative filed an immigrant visa petition (form I-130) for you or are you the beneficiary of an I-360 (special immigrant, Amerasian or battered spouse) petition?

Yes: Move to the next question.

No: Stop here – you cannot file the waiver at this time – your U.S. Citizen relative must FIRST file the I-130 petition on your behalf with the USCIS.

6. Has the petition in the above question already been approved by the USCIS?

Yes: Move to the next question.

No: Stop here – you cannot file the waiver at this time – the petition that was filed must first be APPROVED by the USCIS.

7. Has the USCIS transferred the approved  immigrant petition file to the Department of State’s “National Visa Center” in Portsmouth, New Hampshire?

Yes:  You may still be able to apply for the I-601A waiver – continue with questions below

No:  You may be eligible to file the I-601A waiver – continue with questions below

8. Have you paid the Immigrant Visa fee and the Affidavit of Support fee to the National Visa Center?

Yes:  You may still be able to apply for the I-601A waiver – continue with questions below

No: You may still be able to apply for the I-601A waiver – continue with questions below

9. Prior to January 3, 2013, has the National Visa Center scheduled an immigrant visa interview for you?

Yes: You CANNOT apply for the I-601A waiver;  you will have to keep the visa interview at the US Consulate overseas and file the I-601 waiver at that time.

No:  You may still be able to apply for the I-601A waiver – continue with questions below

10. If you had to leave the USA, would ANY of your immediate U.S. Citizen relatives suffer “extreme hardship” if you were not allowed back into the USA?

Yes:  Move to the next question.

No:  Stop here – you cannot file the waiver at this time.

11. Can you obtain evidence of the extreme hardship that your U.S. citizen relative would suffer?

Yes: Move to the next question.

No:  Stop here – you cannot file the waiver at this time.

12. Are you in deportation proceedings (immigration court) at this time?

Yes:  Stop here – you cannot file the waiver at this time.

No: Move to the first question after the questions regarding immigration court.

13.  Are your immigration court proceedings administratively closed?

Yes: Move to the next question.

No: Stop here – you cannot file the waiver at this time – respondents in pending deportation cases cannot apply for the I-601A waiver.

14. Have you applied to the Immigration Court to terminate your case?

Yes: Move to the next question.

No: Stop here – you cannot file the waiver at this time; contact an attorney to move to terminate your case

15. Has the Immigration Court terminated your case?

Yes: Move to the next question.

No: Stop here – you cannot file the waiver at this time; once the immigration court terminates your case, you can then leave the USA to seek the waiver at the U.S. Consulate in your home country.

16.  Have you ever (i) been ordered deported, (ii) been ordered removed, (iii) failed to leave the USA when you were granted voluntary departure or (iv) reentered the USA after a previous illegal entry?         

Yes: Stop here – you cannot file the waiver at this time, OR if you file, you may be taken into USICE custody and deported from the USA.

No: Move to the next question.

17.  Have you been convicted or pled “guilty” or “no-contest” to any crimes or offenses for which you have NOT been placed in immigration proceedings?

Yes:  Stop here – you cannot file the waiver at this time, OR if you file, you may be placed in immigration (deportation) proceedings.  Consult an immigration attorney to determine exactly what the immigration consequences of your conviction might be, and then proceed.

No: Move to the next question.

18. Have you been convicted of any felonies, serious crime or two or more misdemeanor offenses?

Yes:  Stop here – you cannot file the waiver at this time, OR if you file, you may be placed in immigration (deportation) proceedings.  Consult an immigration attorney to determine exactly what the immigration consequences of your conviction might be, and then proceed.

No: Move to the next question.

19. Do you have any other issues / crimes / false claims to US Citizenship / identity theft / fraudulent applications before the USCIS or any other US government agency that may impact on the approval of your potential I-601A application?

Yes: Stop here – you cannot file the waiver at this time OR if you file, you may be placed in immigration (deportation) proceedings. Consult an immigration attorney to determine exactly what the immigration consequences of your actions might be, and then proceed.

No: You may be eligible to apply for the I-601A Waiver of Unlawful Presence.  Please consult with a licensed, experienced Immigration Attorney to confirm this assessment.

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About the author: Attorney Farhad Sethna has practiced law for over 20 years.  Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. His practice is limited to immigration and small business. With offices in Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases.  Our number is: (330)-384-8000.  Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.

This is only general legal information.  Please consult a qualified immigration attorney for advice on your specific case.

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