I-601 Extreme Hardship Waiver for Unlawful Presence

Section 212(a)(9)(B)(v) of the Immigration and Nationality Act waives the "unlawful presence" ground of inadmissibility for foreign nationals if they can demonstrate that their U.S. citizen or lawful permanent resident spouse or parent would suffer "extreme hardship" if the foreign national is not allowed to return to the United States.

Background

Foreign nationals who voluntarily depart the United States after accuring over 6 months of "unlawful presence" in the United States are deemed ineligible to re-enter the U.S. for three years starting from the date of their departure.

Foreign nationals who depart the United States after accruing over 12 months of "unlawful presence" in the United States are deemed ineligible to re-enter the U.S. for ten years starting from the date of their departure.

Unlawful presence is any period in which a foreign national is present in the U.S. after expiration of their period of authorized stay (e.g. after the expiration date found on the ir I-94 entry/departure card) or after entering the U.S. without being admitted or paroled (e.g. after entering the U.S. illegally without inspection).

This "unlawful presence" ground of inadmissibility typically poses a problem for spouses of U.S. citizens who entered the U.S. illegally without inspection (e.g. through the U.S-Mexican border). 

Although these spouses are eligible to apply for U.S. lawful permanent residency through their marriage to a U.S. citizen, they cannot adjust their status while remaining in the U.S. (with the small exception of those who qualify under the INA 245(i)). 

Thus, these spouses must eventually return to their home country for an interview at the U.S. embassy/consulate as part of the process of obtaining U.S. lawful permanent residency.  This departure from the U.S. and application for (re)admission triggers the "unlawful presence" bar described above. 

The I-601 extreme hardship waiver allows the unlawful presence ground of inadmissibility to be waived and the foreign spouse to successfully and legally return to the United States to pursue lawful permanent residency.