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.
What You Need to Know
- 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:
- • You depart the United States and appear for your immigrant visa interview, and
- • 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.
- While USCIS does not envision placing I-601A applicants in removal proceedings, USCIS will follow current Department of Homeland Security (DHS) and USCIS Notice to Appear (NTA) guidance governing initiation of removal proceedings. For more information on USCIS NTA priorities, see USCIS Policy Memorandum, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens (Nov. 7, 2011).
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
- 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.
You are not eligible for a provisional unlawful presence waiver if any of the following conditions apply to you:
- • You may be subject to one or more grounds of inadmissibility other than unlawful presence.
- • DOS initially acted before January 3, 2013,
to schedule your Immigrant Visa (IV) interview for the approved
immediate relative petition upon which your provisional unlawful
presence waiver application is based, even if your immigrant visa
interview has been canceled, you failed to appear for the interview, or
your interview was rescheduled on or after Jan. 3, 2013.
Note: The date and time that you are scheduled to appear for your immigrant visa interview at the designated U.S. embassy or consulate is not the date USCIS will use to determine if you are eligible for Form I-601A. If DOS initially acted before January 3, 2013, to schedule your immigrant visa interview, you are not eligible for Form I-601A, even if you failed to appear for your interview or if you or DOS cancelled or rescheduled your interview for a date on or after January 3, 2013.
Instead, you may file a Form I-601, Application for Waiver of Grounds of Inadmissibility, from outside the United States after you have been interviewed for your immigrant visa, and the consular officer has found that you are inadmissible for a ground that may be waived.
- • You are in removal proceedings that have not been administratively closed.
- • At the time of filing, you are in removal proceedings that have been administratively closed but have been placed back on the EOIR calendar to continue your removal proceedings.
- • You do not meet one or more of the requirements, as outlined in the Form I-601A and its instructions.