Articles Posted in I-601A Provisional Waivers

Welcome back to Immigration Lawyer Blog, where we discuss all things immigration. In this video, we cover a very important topic: can people who overstayed their visa or entered illegally, get a work visa or employee sponsorship?

Recently our office met with a client who was in this very predicament. He had the perfect job opportunity from his dream employer and was now interested in knowing how he could obtain a work visa with his employer’s sponsorship. The problem: he entered the country illegally and since entering had no lawful status in the United States.

Here is where we had to deliver the bad news.

The bottom line

A person who has entered illegally or overstayed the duration of their visa, is not eligible to adjust their status to permanent residence. During the employment sponsorship process, the visa applicant must provide information regarding their entry to the United States. Under current immigration law, a person who has entered without inspection cannot adjust their status in the United States, based on employment sponsorship except under one limited exception called 245(i).

What is 245(i)

245(i) is a provision in the law passed under the Legal Immigration Family Equity (LIFE) Act in the year 2000, enabling certain individuals who are unlawfully present in the United States to apply for adjustment of status, despite their unlawful entry.

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What’s the difference between someone who is undocumented in the United States and someone who is here illegally?

What does it mean to be “undocumented”?

When someone is in the United States “undocumented,” that means that the person entered the United States without inspection (without the proper documentation), and as a result are currently living in the United States without the proper documentation, hence the term “undocumented.”

What does it mean to be in the U.S. “illegally”?

On the other hand, someone who came to the United States on a valid visa (such as a student visa, tourist visa, etc.) and then lost their status, either because they did not renew their visa, or their visa expired, or for some other reason, are in the United States “illegally.” These individuals were legally in the United States at some point but are now in the United States “illegally” because they are now out of status. This is also referred to as a visa overstay.  That is because the individual has now stayed in the United States past the time authorized by their initial visa.

In both cases, the individual is in the United States without authorization because they do not have the proper visa.

Path to Residency

A person who is “undocumented” meaning that they entered the United States without proper inspection, cannot adjust their status to permanent residency so easily even where married to a U.S. Citizen. Undocumented parties married to U.S. Citizens must file a waiver of inadmissibility and in some cases will have to leave the United States before applying for residency.

By contrast, a person who entered the United States with proper inspection, but who is now in the United States illegally because of an overstay, can apply for permanent residency more easily, where married to a U.S. Citizen. These individuals do not have to leave the United States before applying for residency.

The key difference between the two is in whether the person entered the country with inspection. If you entered without inspection, you would be undocumented. If you entered with inspection, but have overstayed your visa, you are in the country illegally.

If you have questions about relating to your status and legalization, please contact us.

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In this segment, attorney Jacob Sapochnick Esq., explains why we do what we do at the Law Offices of Jacob J. Sapochnick. For more information about our office and the services we provide please click here.


Since 2004, we have efficiently and conveniently served our clients located across the United States and around the world through the use of cutting-edge technology and other innovations, always maintaining the personal connection you have come to expect from us.

You can express your interest, or schedule an appointment by emailing us at We are excited to expand our ability to help many more of you, as you seek to achieve your American dream of living and working in this great country, a nation of immigrants.

Looking back, it is hard to narrow the reasons for our firm’s success. So much goes into that, but the main three ingredients have to be the lawyers, staff and clients. I am amazed at the enduring relationships we have with our clients.

Our office has been blessed with a staff that is motivated, efficient and very capable. I also think it important that they are compassionate for our clients’ issues – this is more than a job for us all – it is a calling.

To learn more about our dedicated staff members please click here.

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In this segment, attorney Jacob J. Sapochnick discusses the I-601A waiver and when it may be used to legalize a foreign spouse. In this case the foreign spouse was removed for a 3-year period.

For more information about the I-601 and I-601A waivers please click here.

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Entered the country illegally and now married to a US Citizen? Watch the video below for more information on the possibility of applying for a green card.

– There is a big difference in having entered the United States illegally and entering the country legally but remaining in the United States past your authorized stay as indicated on your visa

– The process outlined in this video outlines information to be followed if you entered the US without inspection after April 2001; before this date section 245 of the law can be used to adjust status in US

– In 2013 a new waiver was introduced allowing aliens to seek a pardon if the only offence is an overstay

If you are ready to get started please call our office.

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In this video, we cover a successful I-601A Waiver case. For legal advice please visit us at

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In this video, Attorney Jacob J Sapochnick, Esq.,  discusses President Obama’s executive order on Immigration.

On November 20, 2014, the President announced a series of executive actions to crack down on illegal immigration at the border, prioritize deporting felons not families, and require certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation.

These initiatives include:

Expanding the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to young people who came to this country before turning 16 years old and have been present since January 1, 2010, and extending the period of DACA and work authorization from two years to three years

Allowing parents of U.S. citizens and lawful permanent residents who have been in the country since January 1, 2010, to request deferred action and employment authorization for three years, in a new Deferred Action for Parental Accountability program, provided they pass required background checks

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In this video, Attorney Jacob Sapochnick Esq,  will explain how to legalize an illegal spouse.

For more information and eligibility questions please contact our office.  Remember to follow us on FacebookYoutubeTwitter, and Instagram 


In this video, Attorney Jacob Sapochnick Esq,  will explain the I-601A waiver process for a spouse that is outside of  the United States.

Who is not eligible to apply for a provisional waiver in the United States?
According to the new rule, the following persons are not eligible to apply for a provisional unlawful presence waiver:

If the applicant is under 17 years old; if the applicant is in removal proceedings, unless the removal proceedings are administratively closed and have not been recalendared at the time of filing the Form I-601A, if the applicant is subject to a Provisional Unlawful Presence Waiver; If USCIS has reason to believe that the applicant may be subject to any other grounds of inadmissibility other than unlawful presence; if the applicant is subject to a final removal order or a final order of exclusion or deportation; if the applicant is subject to reinstatement of a prior removal order; if the applicant does not have a case pending with the Department of State, based on the approved immediate relative petition, or has not paid the immigrant visa processing fee;  if the Department of State initially acted to schedule the immigrant visa interview prior to January 3, 2013 for the approved immediate relative petition on which the provisional unlawful presence waiver is based, even if the interview has since been cancelled or rescheduled after January 3, 2013; (NOTE: The actual date and time that the alien is scheduled to appear for the interview is not relevant for the eligibility determination. This rule applies even if the alien failed to appear for his or her interview, cancelled the interview, or requested that the interview be rescheduled.) if the applicant has a pending Form I-485, Application to Register Permanent Residence or Adjust Status with USCIS. (NOTE: Individuals who are eligible to obtain LPR status while inside the United States through the adjustment of status process do not need the provisional unlawful presence waiver. The provisional unlawful presence waiver is only valid for the purpose of seeking an immigrant visa outside the United States.)

For more information and eligibility questions please contact our office.  Remember to follow us on FacebookYoutubeTwitter, and Instagram 


Filing Tips with the kind sharing of Laurel Scott, Esq:
1. The first thing the form asks for is an alien number. Most applicants won’t have an alien number unless they’ve been placed in proceedings. If you’re unsure, look at the I-130 approval notice. If the alien has an alien number, it is usually above the alien’s name.

2. For question 2, if the applicant does not have a Valid social that actually belongs to him/her, leave blank. If the applicant was ever issued a Valid social – e.g. as a child or when in lawful status – that social still belongs to the applicant even if he/she goes out of status, and should be listed on the form.

3. Part 2, question 1. If you’ve re-filed your I-130, use the most recent receipt number. For question 4, use the NVC case number associated with the most recent I-130. If you re-filed, you have to wait for the new I-130 to be approved.

4. Part 2, question 5. The answer should always be ‘no’. If the answer is ‘yes’, you’re not eligible. If you re-filed the I-130 and the new one hasn’t been sent to the consulate, then your answer is ‘no’, even if the old was was scheduled.

5. Parts 4 and 5. Don’t try to write your ‘letters’ or ‘briefs’ in that space. The instructions say you can write “see attached”.

6. Page 2 of the instructions solves the problem of leaving while the case is administratively closed. The instructions say that if you are in proceedings and get the provisional waiver approved, approach EOIR about getting proceedings terminated (not just administratively closed) before you depart.

7. Don’t forget to include a copy of the NVC IV Bill receipt and the I-130 approval notice. If you don’t have the I-130 approval notice, they will accept a copy of the online case status showing the case was approved.

8. The instructions say they will accept photocopies of items. IMHO they still want original letters, but they want to be clear that they are not sending you anything back, so don’t ask.

9. Checks will be processed electronically so if you want your payment to have the receipt number on the back as a secondary way of getting your case number (in case receipt notice doesn’t arrive), I recommend using a money order.