Provisional Unlawful Presence Waivers

Since March 4, 2013, certain immigrant visa applicants who are immediate relatives (spouses, children and parents) of U.S. citizens can apply for provisional unlawful presence waivers before they leave the United States for their consular interview.

Foreign nationals who are not eligible to adjust their status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return. Typically, these foreign nationals cannot apply for a waiver until after they have appeared for their immigrant visa interview abroad, and a Department of State (DOS) consular officer has determined that they are inadmissible to the United States.

The provisional unlawful presence waiver process allows immediate relatives who only need a waiver of inadmissibility for unlawful presence to apply for that waiver in the United States before they depart for their immigrant visa interview.

This new process was developed to shorten the time that U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States.
Immediate relatives who do not wish to seek a provisional waiver can still file Form I-601, Application for Waiver of Grounds of Inadmissibility, after a DOS consular officer determines that they are inadmissible to the United States. The same is true for immediate relatives who are ineligible for a provisional unlawful presence waiver.

• The provisional unlawful presence waiver process does not change the immigrant visa process. Even if your provisional unlawful presence waiver is approved, you are still required to depart the United States for your immigrant visa interview with a U.S. consular officer abroad.
• If a provisional unlawful presence waiver is approved, it will only take effect after:
1. You depart the United States and appear for your immigrant visa interview, and
2. A DOS consular officer determines that you are otherwise admissible to the United States and eligible to receive an immigrant visa.
• DOS may cancel your immigrant visa application process if you fail to appear at your immigrant visa interview at a U.S. embassy or consulate.
• If you are in removal proceedings, you are ineligible for a provisional unlawful presence waiver unless, at the time you file your Form I-601A, your proceedings are administratively closed and have not been put back on the Department of Justice, Executive Office for Immigration Review (EOIR) calendar to continue your removal proceedings.

Eligibility Requirements

To be eligible for a provisional unlawful presence waiver you must fulfill ALL of the following conditions:

• Be 17 years of age or older.
• Be an immediate relative of a U.S. citizen (not a preference category immigrant who has a visa available). An immediate relative is an individual who is the spouse, child (unmarried and under 21), or parent of a U.S. citizen.
• Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
• Have a pending immigrant visa case with DOS for the approved immediate relative petition and have paid the DOS immigrant visa processing fee (IV Fee).
• Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent.
• Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
• DOS did not initially act before January 3, 2013 to schedule your Immigrant Visa interview for the approved immediate relative petition upon which your provisional unlawful presence waiver application is based.
• Meet all other requirements for the provisional unlawful presence waiver, as detailed in 8 CFR 212.7(e) and the Form I-601A and its instructions.

Call our team of experts at CIMA Law Group today at (623) 377-4191 to make an appointment to talk to an attorney about filing a provisional unlawful presence waiver.